Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the inaction of the Kentucky River Regional Jail relative to Michael Sheliga's request for a "record of which prisoners were in these cells (R2, R3, L1, L2 and L3) on Monday, October 25[, 2009,]" 1 "[i]dentifying photographs (mug shots) of these prisoners, including the portion of any record indicating their names," and the "name of the short, overweight [J]ail employee with dark hair who distributed orange drinks to the prisoners late in the afternoon of Monday[, October 5, 2009]." Having received no response to his October 9, 2009, request or his November 2, 2009, request, Mr. Sheliga initiated this appeal 2 by letter dated December 21, 2009. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Jailer/Director Tim Kilburn and Perry County Attorney John Shackelford on December 29, 2009, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Wednesday, January 6, 2010," this office has not received a response nor was either Notification returned as undeliverable. As of this date, the Attorney General has not been advised that KRRJ has taken any kind of action relative to Mr. Sheliga's request(s). In our view, 05-ORD-190 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference.
As a public agency, KRRJ 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 made under 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, as KRRJ did here, constitutes a violation of the Act.
KRRJ had three opportunities to discharge its duty under KRS 61.880(1); first, upon receipt of Mr. Sheliga's October 9 request, next upon receipt of his November 2 request, and finally, upon receiving the notification of his appeal from this office. It is undisputed that KRRJ has not issued a written response to either of Mr. Sheliga's requests, and this constitutes a clear violation of KRS 61.880(1). Public agencies such as KRRJ are not permitted to elect a course of inaction. As the Attorney General has consistently recognized, 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; 09-ORD-186.
Because KRRJ did not respond to Mr. Sheliga's request, the KRRJ 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 Accordingly, KRRJ must provide Mr. Sheliga with copies of any existing records in its custody which are responsive to his request unless the KRRJ can satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the KRRJ's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 4 If KRRJ "does not have custody or control" of any records identified in Mr. Sheliga's request, KRRJ "shall notify [Mr. Sheliga] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until KRRJ performs these functions, it stands in violation of the Open Records Act. See 09-ORD-186.
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.
Michael SheligaTim KilburnJohn Shackelford
Footnotes
Footnotes
1 Mr. Sheliga first provided the following context:
The first cell on the right of the first hallway to the right as one proceeds past the main desk of the jail was cell # 128. This was its reference on the whiteboard in the jail that had my name beside it. I will refer to this cell as R1, since it is the first cell on the right of this linear hallway. The cell adjacent to it I will refer to as cell R2. The subsequent cell is R3. The cells across from these cells, on the [l]eft side I will refer to as cells L1, L2 and L3.
He also requested that if no existing record was responsive to his first item that KRRJ "provide a record of the current prisoners in these cells. " Likewise, Mr. Sheliga requested that if KRRJ was uncertain as to which employee he was referring in the final item that KRRJ "provide a list of all employees who fit this description."
2 On appeal, Mr. Sheliga noted that he was not appealing from the portion of his October 9 request in which he also sought "[a]ny record showing the cell layout of the cell numbers in the hall that includes cell number 128." In order to "expedite this matter and overcome any legitimate concern [KRRJ] may have about its layout, " Mr. Sheliga revised his request "such that it did not ask for any cell layout. " Accordingly, this record(s) is no longer at issue.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 A public agency such as KRRJ 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.
4 If no records exist which areresponsive to Mr. Sheliga's request, KRRJ must promptly indicate as much to Mr. Sheliga in writing. 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, KRRJ must ascertain whether any existing records are responsive to Mr. Sheliga's request(s), promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -