Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated the Open Records Act in the disposition of William D. Woolum's December 2, 2010, handwritten request, which in part was a "Resubmission of Request made on October 14, 2010 [for] 'Adopted notes/recommendations/material relevant as a result of October 7, 2010 Investigation which concluded around mid-November 2010,'" 1 but also sought "All information, including copies of letters I have written those offices involved/mentioned in my request of October 7, 2010, with stamp of received dates[, and all] reports, including audio CD of interview conducted by Sgt. Dorothy Taylor, Internal Affairs Officer, conducted on or about October 26, 2010, with me." By letter of December 28, 2010, Mr. Woolum initiated this appeal, noting that his request was made after the investigation was concluded and "no response has been given." Upon receiving notification of Mr. Woolum's appeal from this office, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, responded on behalf of KSR, advising that "KSR staff have no record of receiving Mr. Woolum's request." This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request; however, if KSR wishes to deny Mr. Woolum's request, in whole or in part now that it possesses a copy, it must satisfy its burden of proof under KRS 61.880(2)(c) by citing the applicable statutory exception (s), if any, and explaining how it applies to the records withheld in a written response to Mr. Woolum.
In his January 10, 2011, response, Mr. Milby further indicated that KSR "received a form authorizing the use of funds with no request attached on December 8, 2010." Apparently this form "was returned to him with instructions to submit a request with the form. KSR staff did receive other open records requests on December 9 and December 14, but those were for an account balance sheet and copies of inmate correspondence, and are unrelated to this appeal." According to Mr. Milby, "KSR has no record indicating that Mr. Woolum ever resubmitted the funds transfer form with the request that is the subject of this appeal." Citing 06-ORD-105, Mr. Milby correctly observed that this office "has repeatedly opined that it is unable to adjudicate factual issues regarding the delivery and receipt of open records requests." 2 Attached to Mr. Milby's response was "correspondence with KSR officials documenting their assertion that no such request was received [consisting of a January 7, 2011, e-mail from Pat Fussell to Mr. Milby, advising that she reviewed the "open records database and spoke to Ms. Jodi Johnson" but found no record of a December 2 request]." Because KSR "has no record of receiving the request that is the subject of the present appeal" Mr. Milby requested that this office "dismiss" it. 3
As in 08-ORD-150, 07-ORD-178, 05-ORD-013, and 03-ORD-061, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of the request at issue for this office to conclusively resolve the related procedural issue. It stands to reason that a public agency such as KSR cannot respond to a request(s) which it does not receive, and the limited evidence presented on this issue does not establish that KSR actually received Mr. Woolum's December 2 request; if anything, the record lends credibility to KSR's assertion. See 05-ORD-222; 03-ORD-052. Absent objective proof to validate Mr. Woolum's position, this office cannot determine that KSR violated the Act from a procedural standpoint by failing to issue a written response within five business days per KRS 197.025(7); accordingly, this office makes no finding in that regard. In sum, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statutory mandate.
That being said, under the kind of circumstances presented agencies commonly address the merits of the request, in the interest of efficiency, having received a copy of it attached to the notification of the appeal if not before. See, for example, 10-ORD-109 and 10-ORD-016. Assuming that Mr. Woolum is correct in asserting that investigation of the October 7 incident has been concluded, responsive documentation would now exist and may be open for inspection as opposed to when he first requested some of the records in October 2010. In 10-ORD-222, KSR advised that "[s]hould the investigation result in criminal or disciplinary charges against Mr. Woolum, his due process rights regarding those documents will attach. " In addition, KSR agreed that "the documents, to the extent they contain a [specific] reference to him as contemplated by KRS 197.025(2), may be made available via the Open Records Act to the extent required by the Act and subject to the exceptions therein, including those established by KRS 197.025, after the investigation is completed." Because KSR did not choose to address the merits of Mr. Woolum's request in responding to his appeal, the record lacks adequate information for this office to make a conclusive determination regarding the accessibility of the records in dispute. However, unless KSR can articulate in a written response to Mr. Woolum a statutory basis for denying access to any existing records which are responsive to his request, in terms of one or more of the exceptions codified at KRS 61.878(1) , KSR should provide Mr. Woolum with copies upon prepayment of a reasonable copying charge not to exceed ten cents per page. 4 See 06-ORD-197.
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.
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