Request By:
Donald Gordon, # 331180
Bobby Moore
Cole Carter
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lee Adjustment Center subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 by failing to afford Donald Gordon timely access to a record he requested on November 29, 2007, and again on December 29, 2007, thereby entitling Mr. Gordon to an award of monetary penalties for each day LAC postponed release of the requested record. That record was identified as the "memo that states [he] had been seen by mental health (Ms. Campbell) and that [he] had said if [LAC] put [him] on Trazadone [he] would take [him]self off." In his letter of appeal, Mr. Gordon acknowledges receipt of the record on January 15, 2008, but urges the Attorney General to "assess penalty [sic] in [his] favor in the amount of $ 25.00 for each day the Open Records Law was violated." For the reasons that follow we find that although LAC subverted the intent of the Act, short of denying Mr. Gordon's request, by failing to release the requested record to him within five business days of receipt of his request, this office is not empowered to impose monetary penalties on LAC under KRS 61.882(5) or any other provision of the Kentucky Revised Statutes.
In its December 7, 2007, response to his request, 2 LAC advised Mr. Gordon that "medical staff is unable to release mental health records," and suggested that he "speak with [the] psychologist" to obtain the record. The record on appeal reflects that on November 7 Mr. Gordon filed a grievance relating to "medical/dental/mental health services," and that the grievance was resolved on December 11 when Warden Randy Stovell adopted the Grievance Committee's recommendation that "Mr. Gordon file an open records request and request the document from the Records Dept." As noted above, Mr. Gordon had done so on November 29 and did so again on December 29. His original request contains a notation that "(1) copy of the above-mentioned document [was] given to inmate on 1-15-08."
In correspondence directed to this office following the January 22 commencement of Mr. Gordon's appeal, LAC asserts that because the requested record was released to him on January 15 his complaint is moot and the Attorney General should "decline to issue a decision or to assess any penalty." In support, LAC cites 40 KAR 1:030 Section 6 which provides as follows:
Moot Complaints - If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
We agree only in part with LAC's position in this matter. While we cannot impose the monetary penalties Mr. Gordon seeks, we do not agree that his complaint is moot inasmuch as he initiated his appeal after he received the requested record and the appeal was postulated on LAC's subversion of the intent of the Open Records Act through its failure to afford him timely access to that record.
As noted, in its December 7, 2007, response to his November 29, 2007, request, LAC advised Mr. Gordon that medical staff could not release the record identified in his application and suggested that he speak with the psychologist. This response was deficient insofar as it was tantamount to a denial but did not contain a citation to one or more of the exceptions to the Open Records Act, or any other confidentiality provision as required by KRS 61.880(1). 3 If, for example, release of the memo was "deemed by the commissioner of the department [of Corrections] or his designee to constitute a threat to the security of [Mr. Gordon], any other inmate, correctional staff, the institution, or any other person," LAC could have invoked KRS 197.025(1), incorporated into the Act by KRS 61.878(1)(l). Instead, LAC indefinitely postponed access to the record by suggesting that Mr. Gordon speak with the psychologist. This was not a proper response to an open records request or a legally recognized basis for postponing access to the requested record.
Mr. Gordon satisfied the requirements found at KRS 61.872(2) by submitting a written application describing the records to be inspected, affixing his signature, and printing his name legibly. It was, in turn, incumbent on LAC to produce the requested record for inspection within five business days 4 or to deny his request on the basis of one or more of the exceptions to the Act or an associated confidentiality provision. Regardless of whether the date of release is calculated from his November 29 request or his December 29 request, LAC exceeded the five day period for release of the record. The only exception to the five day rule is found at KRS 61.872(5). 5 LAC did not, nor does it now, advance any argument under this provision, and it therefore appears to have no application here. We therefore conclude that LAC subverted the intent of the Open Records Act by failing to afford Mr. Gordon timely access to the requested record.
Having so concluded, we nevertheless decline Mr. Gordon's request that we assess penalties in the amount of $ 25.00 for each day the record was withheld. This office has long recognized that it has no authority to impose monetary penalties for violation, or subversion of the intent, of the Open Records Act. See, e.g., OAG 79-380; OAG 80-367; OAG 81-264; OAG 82-342; OAG 90-58; 93-ORD-135; 95-ORD-88; 98-ORD-21; 99-ORD-121; 99-ORD-159. The relevant provision of the Act, KRS 61.882(5), thus provides:
Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($ 25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.
(Emphasis added.) In construing this provision, the Attorney General has observed:
The language of [KRS 61.882(5) ] is abundantly clear. Only the courts may impose penalties for denial of inspection of public records. [Citations omitted.] For this reason, the Attorney General's Office has consistently refrain[ed] from opining on whether records were willfully withheld pursuant to KRS 61.882(5).
99-ORD-121, p. 18, citing OAG 90-58, p. 6. The Attorney General "has a precise and narrow function in connection with the interpretation and application of the Open Records Act. " 96-ORD-120, p. 3. That function is defined at KRS 61.880 and is limited to reviewing complaints arising from a public agency's denial of a request to inspect a public record 6 or subversion of the intent of the Act by the agency, 7 and issuing a written decision stating whether the Act was violated or its intent subverted. Having done so, our statutory duties are fully discharged.
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 a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Mr. Gordon's request contains a LAC Records date-stamp of December 3, 2007.
3 KRS 61.880(1) thus 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.)
4 KRS 197.025(7) provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
This provision has been deemed applicable to private facilities operating under contract with the Department of Corrections. 04-ORD-205; 05-ORD-184.
5 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
6 KRS 61.880(2)(a).
7 KRS 61.880(4).