Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Oldham County Jailer Mike Simpson violated the Open Records Act in partially denying Rebecca Bailey's October 30, 2009, request for various records relating to her employment. We find that the Jailer's actions were procedurally deficient but, in all material respects, substantively correct.
Ms. Bailey requested access to:
1) Any and all institutional policies and procedures which relate to the security, or threat to the security, of the Oldham County Jail.
2) Any and all documentation which relates to the decision to remove me from my position as Pretrial Officer for the Oldham County district.
3) A written transcript of the oral conversation between your office and the Honorable Judge Jerry Crosby, II, District 12 Judge - Commonwealth of Kentucky and/or the Honorable Diane Wheeler, District Judge; as pertains to my employment.
4) A written transcript of any and all conversations between you, your office, and the Administrative Office of the Courts in relation to my being removed from the position of Pretrial Officer, within the Oldham County Jail. (Including the names, dates, and methods of contact utilized by the parties involved in the decision to transfer me to the Shelby County District.)
5) Any and all written documentation as pertains to request # 4.
6) Copies of any written documentation, which relates to the above-mentioned conversations, between your office and the Honorable Judge Jerry Crosby, District Judge, and/or the Honorable Diane Wheeler, District Judge.
7) Any and all documentation, maintained by the Oldham County Jail, or otherwise, which bares [sic] my name, social security number, or any reference to the same.
8) Any documentation of disciplinary action, taken on behalf of your office, pertaining to my employment including any supporting documentation.
On November 3, 2009, Mr. Simpson notified Ms. Bailey by letter that the requested records were available for inspection, but failed to note that portions of her request were denied because no responsive records existed.
One day later, Ms. Bailey made arrangements to conduct an on-site inspection. Upon her arrival, Mr. Simpson presented Ms. Bailey with a "final" agency response in which he denied the existence of records responsive to requests 3, 4, 5, 6, and 8. He provided her with copies of records responsive to requests 1 and 7, and responded to request 2 in a narrative form, explaining that "[t]he decision to remove [Ms. Bailey] from her position as Pretrial Officer from the Oldham County District [did] not fall under [his] responsibilities," and that therefore no documentation responsive to request 2 existed.
On appeal, Ms. Bailey challenged the Jailer's statement that "he did not have to provide such transcriptions as said conversations did not take place." She identified at least two instances in which Mr. Simpson was alleged to have spoken with her employer and the operations supervisor. Ms. Bailey emphasized that the term "any and all," appearing in her request was meant to include "phone records, copies of date books outlining future meetings with [her] employer, and any written notes." Additionally, she questioned the suitability of the facilities in which she was expected to conduct her inspection, explaining that her request for "a more private setting" was rejected and that she was compelled to review the records in the presence of the jailer, his secretary, and a deputy.
In supplemental correspondence directed to this office following submission of this appeal, Mr. Simpson denied that Ms. Bailey requested "a more private setting." He reiterated that:
I do not have any written documentation; therefore there is no record/document to produce. As it pertains to any meetings or conversations that took place between my office and the Administrative Office of the Courts, there were never any audio recordings done by myself, again making it impossible to produce a record that does not exist. Finally, any decision that was made to transfer Ms. Bailey was done so by her immediate supervisors.
It was Mr. Simpson's position that because he was not required to create records that did not exist, his response "clearly falls under the guidelines of the Kentucky Open Records Act. " With the exception of certain deficiencies in his original response, we agree.
The Oldham County Jailer properly disposed of Ms. Bailey's request by issuing a timely written response in which he advised her that the records she sought were immediately available for public inspection. KRS 61.880(1). His procedural error consisted of his failure to notify Ms. Bailey, in the original response, that some of the requested records were not in his custody or did not exist and were therefore unavailable. Any denial of an open records request, whether in whole or in part, must be accompanied by a written explanation. KRS 61.872(4) addresses those situations in which a request for records is misdirected, providing that:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Mr. Simpson belatedly notified Ms. Bailey that he maintained no records responsive to requests 2, 3, 4, 5, 6, and 8, because the decision relating to her removal as a pretrial officer in Oldham County did not rest with him but with the Administrative Office of the Courts. He subsequently advised her that he made no audio recordings of meetings or conversations with representatives of AOC and that he therefore could not produce tapes or transcripts of tapes. He emphasized that "any decision that was made to transfer Ms. Bailey was done . . . by her immediate supervisors, " who would, presumably, maintain the records she sought. A review of the Administrative Office of the Court's website, as it pertains to pretrial services, confirms this statement. http://courts.ky.gov/ aoc/ pretrial/ moreinfo.htm. Nevertheless, Mr. Simpson's original response was deficient to the extent that it did not notify Ms. Bailey that he was not the custodian of the records identified in requests 2, 3, 4, 5, 6, and 8, and state where responsive records might be located.
As for the disparity between records produced for inspection and records requested but not produced, Kentucky's highest court has squarely addressed this issue. In
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 332 (Ky. 2005), the Supreme Court declared that a requester is not entitled to a hearing to disprove an agency's denial of the existence of requested records unless she makes a prima facie 1 showing that such records do exist. See, e.g., 06-ORD-223 and 07-ORD-188 (enclosed) . Ms. Bailey speculates that additional records exist, but Mr. Simpson rebuts her claim, offering a plausible explanation for the nonexistence of responsive records within his office. Under these circumstances, additional inquiry is not warranted.
With reference to the issue of suitable facilities for inspection of public records, we direct the parties' attention to 93-ORD-39 (enclosed) . In that open records decision, the Attorney General recognized that although "a requester cannot expect the agency to provide facilities offering the enforced silence of a library, she may certainly expect that those facilities will afford her adequate opportunity to inspect the records without interruption, and without harassment." 93-ORD-39, p. 2. No evidence appears in the record on appeal to support Ms. Bailey's claim that Mr. Simpson deprived her of suitable facilities for inspection of the requested records, and he denies that the issue was raised at the time of inspection. Absent evidence of unsuitable facilities beyond Ms. Bailey's claim that the jailer and two of his employees were present in the room, we are unwilling to assign error under KRS 61.872(2). Nevertheless, we urge the parties to review 93-ORD-39 to insure that future disputes do not arise.
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.
Rebecca BaileyMike SimpsonJohn R. Fendley
Footnotes
Footnotes
1 Black's Law Dictionary, 1071 (5th ed. 1979) defines the term "prima facie" as "a fact presumed to be true unless disproved by some evidence to the contrary."