Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Keeton Corrections, Inc. - Paducah, also known as KCI Paducah and the Paducah Community Service Center, violated the Kentucky Open Records Act in failing to respond upon receipt of Demetrius Henry's written request for various records concerning his transfer from KCI Paducah to another facility and the related confiscation of his property. More significantly, the threshold issue presented is whether KCI Paducah is a "public agency" for purposes of the Open Records Act. Based upon the evidence presented, this office finds that KCI Paducah "derives at least twenty-five (25) percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds"; accordingly, KCI Paducah is a "public agency" within the meaning of KRS 61.870(1)(h), and is therefore subject to the provisions of the Open Records Act. In light of this determination, the Attorney General must conclude that KCI Paducah violated KRS 61.880(1) in failing to issue a written response within three business days, and must comply with Mr. Henry's request unless the agency can satisfy its burden of proof under KRS 61.880(2)(c) by citing a statutory basis to justify withholding some or all of the records.
Upon receiving notification of Mr. Henry's appeal from this office, Amy Harwood-Jackson, Counsel for Keeton Corrections, Inc., ultimately advised that Keeton Corrections "is not subject to the Open Records Request in that it does not derive 25% of its income from state or local authority funds." (Original emphasis.) Ms. Harwood-Jackson further observed that "Keeton Corrections operates facilities in many states and does not meet the 25% threshold for Kentucky operations." 1 Accordingly, she requested that Mr. Henry's appeal be dismissed.
Unable to resolve the threshold issue of whether KCI Paducah is a "public agency" within the meaning of KRS 61.878(1)(h) based upon the limited evidence presented, this office requested, in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, that Ms. Harwood-Jackson provide us with additional information to facilitate resolution of this matter. More specifically, this office asked Ms. Harwood-Jackson to "please specify the amount of funds that KCI Paducah expended in the Commonwealth of Kentucky during the current fiscal year (to date)" as well as the "percentage of those funds expended in the Commonwealth of Kentucky during the specified time period, which KCI Paducah derived only from (Kentucky) state or local authority funds." In addition, this office asked Ms. Harwood-Jackson to include a copy of the KCI Paducah budget for the 2009-2010 fiscal year with her written response.
Ms. Harwood-Jackson promptly responded in a letter dated March 19, 2010, initially reiterating her previous arguments regarding Keeton Corrections, Inc. as a whole. Attached to her written response was a copy of the "Profit and Loss projections for KCI for the 2009-10 fiscal year. " Ms. Harwood-Jackson explained her client's position as follows:
As you can see, gross revenues are $ 4,319,763.13 and revenues derived from the State of Kentucky are $ 643,030.07. This works out to [] 14.9% of revenue for KCI derived from Kentucky, well below the 25% threshold.
The second attached document shows expenditures in Kentucky of $ 495,001.46. Total expenses for KCI are $ 4,447,281.44. This works out to 11.1% of KCI's expenditures are made in the State of Kentucky. We are assuming all expenses for the Kentucky facility are made in Kentucky. An actual estimate would be that 95% of these expenses are paid in Kentucky. Again, these expenditures are well below the 25% needed for the Open Records Act to apply.
In addition, it is my understanding that Mr. Henry was reassigned from the Paducah facility to another facility by the Department of Corrections due to violation of the Department's own drug testing procedures (Correctional Policies and Procedures 15.2). All of Mr. Henry's property was disposed of according to [DOC] policies. It is our position that the records requested by Mr. Henry are not relevant to any issue he may have with the [DOC's] handling of his reassignment and/or property dispensation. . . .
When viewed in light of existing legal authority interpreting KRS 61.878(1)(h), the financial documentation presented establishes that KCI Paducah is a "public agency" within the meaning of that provision; accordingly, this office must respectfully disagree with its assertion to the contrary. 2
Resolution of the question presented, as previously indicated, turns on whether KCI Paducah, rather than Keeton Corrections, Inc., is a public agency within the meaning of KRS 61.870(1)(h), which defines "public agency" to mean:
Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
Subsection (h) is the only provision of KRS 61.810(1) which is applicable on the facts presented.
In a decision issued last year (Deborah H. Patterson/M.A. Mortenson Company), which dealt with application of KRS 61.878(1)(h) to M.A. Mortenson Company, the "Construction Manager-at-Risk" for the Louisville Arena Authority, this office adopted the interpretation of KRS 61.878(1)(h) set forth by the appellant, which admittedly represented "a significant departure from prior decisions in which the 'expended by it in the Commonwealth' language was not meaningfully applied." 3 09-ORD-033, p. 6. Reversing "that line of decisions in which this office did not effectively analyze what percentage of state or local authority funds the 'body' expended in the Commonwealth," the Attorney General reasoned, in relevant part, as follows:
In 1992, the statute was amended by resolving it into eleven component subsections at KRS 61.870(1)(a) through (k). Thus KRS 61.870(1) formerly limited the pertinent analysis to "bodies" which derived at least twenty-five percent of their funds from state or local authority funds. Since July 15, 1994, KRS 61.870(1)(h) has defined "public agency" as "[a]ny body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." (Emphasis added.) The General Assembly altered the language of KRS 61.870(1)(h) by expanding its language to encompass any "body" receiving any state or local funding so long as that funding represents at least twenty-five percent of the total funds it expends in the Commonwealth.
09-ORD-033, p. 7 (emphasis in original). 4
In arguing that "Keeton Corrections operates facilities in many states and does not meet the 25% threshold for Kentucky operations," and partially relying on the gross revenues and expenditures for Keeton Corrections, Inc., rather than only those of KCI Paducah in complying with our KRS 61.880(2)(c) request for additional information, Ms. Harwood appears to have implicitly relied in good faith on decisions of this office that predate 09-ORD-033. However, the record on appeal, in relevant part, establishes that "revenues derived from the State of Kentucky ["state or local authority funds"] are $ 643,030.07" for KCI Paducah in the 2009-2010 fiscal year. Documentation attached to KCI Paducah's final response "shows expenditures in Kentucky of $ 495,001.46." Accordingly, the determinative inquiry is whether 25% or more of $ 495,001.46, the funds expended by KCI Paducah in the Commonwealth of Kentucky, 5 was derived from state or local authority funds. Inasmuch as $ 643,030.07 was apparently derived from state or local authority funds, when the correct formula is used KCI Paducah unquestionably meets the 25% threshold of KRS 61.878(1)(h), and therefore is a "public agency" for purposes of the Open Records Act.
In light of this determination, the question becomes whether KCI Paducah violated the provisions of the Open Records Act relative to Mr. Henry's request. 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.
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 KCI Paducah did here, constitutes a violation of the Act. 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.
Because KCI Paducah did not initially respond to Mr. Henry's request, KCI Paducah necessarily failed to advance a legal argument in support of its apparent denial of that request. On appeal, KCI Paducah merely indicated that his "property was disposed of according to [DOC] policies" and the records he seeks "are not relevant" to any issue that he may have with the DOC regarding his transfer and/or the confiscation or dispensation of his property. However, in
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Court observed that the relevant "analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Accordingly, this office has consistently recognized that generally speaking, neither the identity of the requesting party nor his purpose in submitting a request is legally relevant. See 07-ORD-056.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 6 Therefore, KCI Paducah must provide Mr. Henry with copies of any existing records in its custody which are responsive to his request unless KCI Paducah can satisfy its burden of proof by articulating, in a letter to Mr. Henry, 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 agency's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 7 If KCI Paducah "does not have custody or control" of any records identified in Mr. Henry's request, KCI Paducah "shall notify [Mr. Henry] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until KCI Paducah performs these functions, it stands in violation of the Open Records Act.
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.
Demetrius Henry, # 184733Ed HallAmy Harwood-JacksonAmy V. Barker
Footnotes
Footnotes
1 According to its website, http://www.keetoncorrections.net, Keeton Corrections, Inc. has been:
actively involved in Residential Community Corrections since 1982 and currently operates facilities in Kentucky, Tennessee, Alabama, and Florida. Our programs are administered in compliance with contracts awarded by the Federal Bureau of Prisons and the State of Kentucky Department of Corrections. In addition to Institutional Transfers, KCI accepts offenders who have been referred by the U.S. District Courts as a modification of their supervision, as well as those sentenced by the courts to serve their entire term in a community setting.
Independent research established that KCI Paducah is the only KCI facility operated in Kentucky.
2 Although not dispositive standing alone, in 09-ORD-189 (Ricky Fulcher/KCI Paducah), issued on November 3, 2009, this office found that KCI Paducah violated procedural requirements of the Open Records Act, but was not required to produce nonexistent records or comply with a duplicative request. More significantly, KCI Paducah did not deny being a "public agency. "
3 In so doing, this office reminded the parties that in Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), the Kentucky Supreme Court expressly recognized the prerogative of the Attorney General to depart from precedent, declaring that the "Attorney General was permitted to reexamine - and even reject - its former interpretation of the law." Significantly, the Court went on to find that "any shock the [agency] suffered when the Attorney General changed course certainly caused the [agency] to suffer no lasting prejudice, even though the [agency] was barred from seeking the Attorney General to reconsider his [decision], because the [agency] had the right, which it obviously exercised, to appeal the Attorney General's" decision to circuit court. Id.
4 Ms. Patterson's client appealed 09-ORD-033 to the Jefferson Circuit Court. In William W. Chilton, III v. M.A. Mortenson Company, No. 09-CI-02749 (Jefferson Circuit Court - Division 13, November 24, 2009), the Court granted Mortenson's motion to dismiss, agreeing "that the lack of any time period within which the expenditure-to-public fund percentage is to be measured renders KRS 61.870(1)(h)" unconstitutional. In the absence of a published opinion by the Kentucky Supreme Court or the Kentucky Court of Appeals finding KRS 61.878(1)(h) unconstitutional, this office is compelled to continue applying that provision as written.
5 KCI Paducah is "assuming all expenses for the Kentucky facility are made in Kentucky. An actual estimate would be that 95% of these expenses are paid in Kentucky." Regardless of which percentage is accurate, our conclusion remains unaltered.
6 A public agency 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.
7 If no records exist which are responsive to Mr. Henry's request, KCI Paducah must promptly indicate as much to Mr. Henry 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, KCI Paducah must ascertain whether records exist which are responsive to Mr. Henry's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate.