Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Grant County Detention Center violated the Kentucky Open Records Act in the disposition of William K. Glover's May 26, 2010, request "to examine" and possibly obtain a copy of the "classification guidelines for the Grant County Detention Center," the "training and qualification guidelines and requirements for 'ALL' members of G.C.D. Classification Committee," the "results of bloodwork from KCPC [Kentucky Correctional Psychiatric Center]," and "[his] doctors['] reports from KCPC." In failing to issue a timely written response, GCDC violated the Act from a procedural standpoint. Based upon the following, this office also finds the agency's ultimate disposition of Mr. Glover's request substantively incorrect.
By letter dated June 30, 2010, Jailer Steven L. Kellam advised Mr. Glover that the requested classification guidelines "are in the inmate handbook and available for viewing." Jailer Kellam further indicated to Mr. Glover that he can receive a copy "through open records" when he is released from custody "but while you are incarcerated this request is denied." 1 With regard to Mr. Glover's medical test results from KCPC, Jailer Kellam advised that Grant County Circuit Court "ordered you to K.C.P.C. and all records pertaining to that information should be provided to your attorney for review and your attorney can disclose the information." Similarly, in reference to reports of KCPC doctors, Jailer Kellam advised Mr. Glover to "[c]heck with your attorney for review." According to Jailer Kellam, he can review all medical records at GCDC "by contacting the medical department's MTA and scheduling a time to review only. There will be no copies provided to you while you are incarcerated here. If your attorney wants copies [he] can make a formal written request to the medical department" which "will be forwarded to the County Attorney 2 for a decision." 3
Upon receiving notification of Mr. Glover's appeal from this office, Grant County Attorney Joe Taylor responded on behalf of the GCDC. In relevant part, Mr. Taylor advised that with regard to classification guidelines, they "had already been provided to Mr. Glover, in the inmate handbook, before he made his Open Records request." According to Mr. Taylor, "a comparison of the Objective Jail Classification description laid out on page 11 of the attached 19-page inmate handbook, " and the "attached Objective Jail Classification section from the [GCDC] Policy Manual, the language in the handbook is essentially the same." In defending the agency's position as to the requested training and qualification guidelines, Mr. Taylor argued that KRS 61.872 requires a person to "precisely describe the public records which are readily available within the public agency. " "If there were such a thing as a G.D.C. Classification Committee," Mr. Taylor observed, "'ALL' members would hypothetically consist of Mr. Kellam and every supervisor at the [GCDC]." In what Mr. Taylor characterized as his "nebulous request," it is not clear "whether Mr. Glover is asking for personnel records pertaining to the numerous, unnamed individuals, general hiring and education requirements for sworn jail personnel, or some nonexistent certification of accomplishment in how to complete a checklist." Accordingly, Mr. Taylor suggested that Mr. Glover "make an appropriate civil discovery request for the specific, relevant information that he wants to use in the U.S. District Court case referred to in his appeal." Mr. Taylor merely reiterated that Mr. Glover's KCPC reports are "readily available" to him "through his attorney(s)" in responding to that portion of his request.
As a public agency, GCDC is obligated to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 4 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to a request submitted 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 [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. By its express and mandatory language, KRS 61.880(1) requires public agencies to issue a sufficiently detailed written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). 02-ORD-165, p. 4. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)[,]" 5 neither of which the GCDC invoked. 02-ORD-165, p. 3. 6 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." 93-ORD-125, p. 5; 04-ORD-114; 02-ORD-187. In order to avoid future violations, GCDC should be guided by this longstanding principle in responding to requests which are submitted under the Open Records Act.
Turning to the substantive issues presented, this office first reiterates that regardless of whether a requester may also be able to access the records elsewhere, has obtained identical records from another source, or may possess other documents which contain some or all of the information being sought, a public agency "cannot avoid [the requirements of KRS 61.872(3)] by directing the requester to conduct his own search." See 95-ORD-52, p. 5 (concluding at pp. 1-2 that a public agency "must retrieve the records in order to make them available for inspection or copying, and that the [agency's] attempt to satisfy the Open Records Act by directing [the requester] to the King Library constituted a violation of the Act"). See also 05-ORD-277. Here, GCDC merely advised Mr. Glover that sections of the inmate handbook already in his possession and responsive sections of the GCDC Policy Manual are "essentially the same." In prior decisions, the Attorney General rejected similar attempts by public agencies to rely on the fact a requester had already obtained the records in dispute from another source (or, in this case, merely possesses a record(s) which is partially responsive or nearly identical) unless the request was duplicative. 06-ORD-131, p. 6; 99-ORD-121, p. 10. Consistent with this line of authority, the Attorney General finds that GCDC has not provided a legally recognized basis for denying access. Referring Mr. Glover to his inmate handbook is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3). Unless GCDC cites a statutory exception which justifies withholding the requested guidelines, and explains how it applies to the records being withheld in a written response per KRS 61.880(1), it must release the records.
Similarly, the fact that Mr. Glover's attorney might be in possession of certain documents, including the KCPC test results and medical reports being sought, is not legally determinative. The following excerpt from a recent decision is controlling on this issue:
To begin, the fact that other parties may have been provided with a copy of [the inmate requester's] file, including any existing records that would satisfy his request, and that [he] obtained a copy of his file from a source other than the [the agency], does not relieve the [agency] of its duty to provide him with a copy of any of those records also in the possession of the agency. 00-ORD-16, p. 4. On at least several different occasions, the Attorney General has rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10; 00-ORD-16; 04-ORD-059; 04-ORD-220; 06-ORD-131. It is only through full disclosure of a public agency's records that a requester can satisfy himself that the record is complete. Id. As the Attorney General has consistently recognized, "a public agency cannot withhold public records from a requester simply because the records may be obtained from another source." 97-ORD-87, p. 4, citing OAG 90-71. Based upon the foregoing, this office finds that the [agency] violated the Act in denying [the] request partially because his defense counsel and/or the Innocence Project had already been provided with a copy of his file.
09-ORD-199, p. 3. Consistent with the foregoing, this office finds that GCDC violated the Act in denying Mr. Glover's request for the specified KCPC test results and medical reports merely because he should also be able to receive such documents from his attorney(s). In light of this determination, the question becomes whether GCDC properly addressed Mr. Glover's request for the training and qualification guidelines for all members of the Classification Committee.
To begin, the agency's initial response does not appear to directly address that portion of Mr. Glover's request. On appeal, Mr. Taylor cites KRS 61.872 in arguing that Mr. Glover's request does not "precisely describe" the records and equivocally advising that "[i]f there were such a thing" as a GCDC Classification Committee, it would consist of Jailer Kellam and "every supervisor" at GCDC. This office has consistently recognized that a public agency's response violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3 (emphasis added); 04-ORD-046, p. 4. On multiple occasions, the Attorney General has expressly so held. See 09-ORD-019 (copy enclosed); 04-ORD-177; 03-ORD-205; 99-ORD-98. Said another way, a public 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. This GCDC has not done.
Instead, GCDC attempted to apply the more demanding standard of KRS 61.872(3)(b) , which applies only to requesters asking to receive copies by mail, rather than KRS 61.872(2), which actually contains the relevant standard of specificity, in denying Mr. Glover's request. The Kentucky Supreme Court recently addressed this issue. Rejecting the Department of Corrections' position that an inmate's request for his "inmate file excluding any documents that would be considered confidential" was "too broad and overly vague," and that the inmate "must describe the record with reasonable particularity, " the Court reasoned, in relevant part, as follows:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected." We must interpret statutes as written, without adding any language to the statute, even in open records cases. [Footnote omitted.] And it is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described.
The absence of a particularity requirement under KRS 61.872(2) is contrasted with the fact that the General Assembly inserted a particularity requirement in KRS 61.872(3), which applies when a person seeks to receive copies of public records by mail. . . .
Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see-the content of his inmate file. It appears obvious to us that Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. [Footnote omitted.] He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen. [Footnote omitted.]
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
Applying the reasoning of Chestnut on the facts presented, this office concludes that GCDC improperly assessed Mr. Glover's request under KRS 61.872(3)(b), rather than KRS 61.872(2), the applicable standard. GCDC may not impose additional requirements on Mr. Glover's request. See 09-ORD-098; 08-ORD-160. Notwithstanding its assertion to the contrary, Mr. Glover was not required to "precisely describe" the records. In our view, his request was "adequate for a reasonable person to ascertain [its] nature and scope." GCDC should provide Mr. Glover with an opportunity to inspect any existing nonexempt records in the custody of the agency which are potentially responsive to his request for training and qualification guidelines/ requirements for members of the Classification Committee, assuming that such a committee (or the functional equivalent thereof) exists, 7 and, upon receipt of payment, also provide him with copies per KRS 61.874(1), pursuant to which a requester " shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies . . ." (Emphasis added.) Contrary to GCDC's assertion, when a public agency provides a requester with an opportunity to inspect records, the "requester enjoys a corollary right to obtain copies" of those records. 8 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40. See 04-ORD-053. GCDC may, of course, require advance payment of the copying fee per KRS 61.874(1).
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.
William K. GloverSteven L. KellamLescal J. Taylor
Footnotes
Footnotes
1 Because his numerical identifiers do not entirely correspond with Mr. Glover's, it is unclear from Jailer Kellam's response, but he was presumably making this argument with regard to classification guidelines and/or the requested training and qualification guidelines.
2 This office sees "nothing wrong with the [agency]'s policy of processing open records requests through its legal department. In our view, this policy ensures uniformity and adherence to the law. 93-ORD-134. However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4.
3 Attached to Mr. Glover's appeal is a copy of his May 26 request letter, that contains handwritten notations, which someone apparently made on the original, indicating that Items 1 and 2 were "denied" without further explanation, and in reference to Item 3 indicating that he "look[ed but] not copied [sic]." It also contains a notation indicating that he "gets cop[ies] through attorney." It is unclear who made said notations; accordingly, this office relies on the copy of the Jailer's June 30 response letter and the agency's response to Mr. Glover's appeal to the extent any discrepancies exist.
4 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
5 KRS 61.872(4) provides:
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.
Pursuant to KRS 61.872(5):
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 On appeal, GCDC offers no explanation for initially failing to respond. Even assuming the five - day response time of KRS 197.025(7) applies to GCDC rather than the three-day response time of KRS 61.880(1), GCDC did not issue a timely response. See 03-ORD-140 (recognizing that KRS 197.025(7), as amended in 1998 by the General Assembly, extended the standard three days to five days for purposes of calculating the response time for the Department of Corrections, but noting that it was unclear whether that provision applied to a local jail) .
7 It stands to reason that GCDC possesses documentation containing the qualifications of Jailer Kellam and "every supervisor" at GCDC and/or identifying the requirements for serving in each capacity.
8 Although GCDC did not utilize this exception initially or in response to Mr. Glover's appeal, in the future, or in the event GCDC opts to appeal this decision to circuit court, it may wish to invoke KRS 197.025(2), which "expressly authorizes correctional facilities under the jurisdiction of the Department of Corrections, whether state or local, to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. " 09-ORD-221, p. 4. That decision was premised on 03-ORD-150 (interpretation of KRS 197.025(2) that does not include jails "is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole")(citation omitted).