Request By:
Billy J. Moseley
Charles E. Keesee
Howard Keith Hall
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Pike County Sheriff's Department violated the Kentucky Open Records Act in failing to respond upon receipt of the request submitted by Billy J. Moseley on behalf of his client "John Keen individually and as personal representative of the estate of John Michael Keen," for "copies of the public records relative to the investigation of, the events of or other reports or data pertaining to the death of John Michael Keen on December 4, 2006 in Pike County, Kentucky." 1 According to Mr. Moseley, his client "made similar requests in the past, and in violation [of the Open Records Act] , got no reply." Having received no response to his request dated September 18, 2007, Mr. Moseley initiated this appeal by letter dated November 6, 2007. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Pike County Sheriff Charles E. Keesee and Pike County Attorney Howard Keith Hall on November 28, 2007, 2 advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," this office has not received a response as of this date nor has the Attorney General been advised that the Sheriff's Department has taken any action relative to Mr. Moseley's request. In our view, 07-ORD-220 and 05-ORD-190 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
As a public agency, the Sheriff's Department must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added.)
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996)(emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id .; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond constitutes a violation of the Act.
Here, the Sheriff's Department had two opportunities to discharge its statutory duty under KRS 61.880(1); first, upon receiving Mr. Moseley's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the Sheriff's Department has not issued a written response to Mr. Moseley's request; its failure to respond in writing, within three business days, constitutes a clear violation of KRS 61.880(1). Public agencies such as the Sheriff's Department are not permitted to elect a course of inaction. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Because the Sheriff's Department did not respond to Mr. Moseley's request, the Sheriff's Department necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c) , "[t]he burden of proof in sustaining the action shall rest with the agency, . . . ." 3 That being the case, the Sheriff's Department must provide Mr. Moseley with copies of any existing records in its custody which are responsive to his request unless the Sheriff's Department can meet its burden of proof by articulating, in writing, a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the Department's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 4 If the Sheriff's Department "does not have custody or control" of any records identified in Mr. Moseley's request, the Sheriff's Department "shall notify [Mr. Moseley] and shall furnish the name and location of the official custodian of the agency's public records. " KRS 61.872(4). Until the Sheriff's Department performs these functions, it stands in violation of the Open Records Act. 5
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In his letter of appeal, Mr. Moseley indicates the date of the incident was December 28, 2006, rather than December 4, 2006; likewise, Mr. Moseley identifies the individual whose death was investigated as "John Michael Keene" rather than "John Michael Keen." For purposes of this decision, these discrepancies are irrelevant.
2 Although Mr. Moseley initially attempted to file an Open Records appeal by letter dated November 6, 2007, Mr. Moseley failed to perfect his appeal by submitting the requisite documentation per KRS 61.880(2)(a). Upon receipt of the statutorily required documentation from Mr. Moseley, this office issued the notifications.
3 Apublic agency such as the Sheriff's Department must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has also observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
4 If no records exist which areresponsive to Mr. Moseley's request, the Sheriff's Department must affirmatively indicate as much to Mr. Moseley in writing immediately. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Sheriff's Department must ascertain whether records exist which are responsive to Mr. Moseley's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.
5 [ILLEGIBLE FOOTNOTE]