Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky Association of Counties improperly characterized as "unspecific, vague, and overly broad" Davon Burke's March 2, 2012, request to inspect "documentation [maintained by KACo] regarding" six cases identified by name and case number, 1 "any contractual agreement that Campbell County Fiscal Court has with [KACo or KALF]," 2 and documentation reflecting "financial amounts paid pursuant to any settlement agreement in any [of the six cited cases]." Under the standard established by the
Kentucky Supreme Court in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), Mr. Burke's request was "adequate for a reasonable person to ascertain [its] nature and scope" and thereafter make the requested records available for inspection. Because he is an inmate at Kentucky State Penitentiary, however, Mr. Burke may be unable to exercise the right of on-site inspection otherwise granted by KRS 61.872(3)(a).
In a response dated March 12, 2012, KACo General Counsel Timothy A. Sturgill cited 03-ORD-040 for the proposition that "a requesting party must identify with 'reasonable particularity' those documents which he or she wishes to review . . . . If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents." This position was rejected by the Kentucky Supreme Court in Chestnut , above, and no longer represents an accurate statement of law. Because Mr. Burke's request satisfied the Chestnut standard, KACo's denial was improper.
In Commonwealth v. Chestnut , above, the Court assessed the adequacy of an inmate request for his "inmate file excluding any documents that would be considered confidential." Rejecting the agency's claim that the request was "too broad and overly vague, " and that the inmate "must describe the record with reasonable particularity, " Chestnut at 658, the Court observed:
The General Assembly enacted the Kentucky Open Records Act, KRS 61.870, et seq. , because it determined that "free and open examination of public records is in the public interest[,]" even if "such examination may cause inconvenience or embarrassment to public officials or others." [Footnote omitted.] And so the General Assembly decreed that with few limited exceptions, "[a]ll public records shall be open for inspection by any person . . ." [Footnote omitted]
The General Assembly's use of the broadly inclusive "any person" demonstrates its intention not to limit the class or type of persons entitled to inspect public records. In fact, the General Assembly used "any person" again in KRS 61.872(2), which provides that "[a]ny person shall have the right to inspect public records. " . . . [T]he open records laws identify no class or type of persons, even prisoners, who are held to a more stringent standard when submitting open records requests. [The agency] bears the burden to rebut the strong presumption in favor of disclosure. [Footnote omitted.]
Chestnut at 660. Applying this rule of law to the appeal before us, we find that the Division improperly imposed "a more stringent standard" on Mr. Burke in submitting his request.
Turning next to the adequacy of the request, the Court opined:
[N]othing in KRS 61.872(2) 3 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.
. . .
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.]
Chestnut at 661.
The Court contrasted the adequacy of Chestnut's request under the KRS 61.872(2) requirement with a request to access records by receipt of copies through the mail under the KRS 61.872(3) 4 requirement, noting the absence of a particularity requirement in the former and the presence of a particularity requirement in the latter, and expressed its agreement with the District Court of Rhode Island's "astute holding" that an open records request:
should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure. Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979).
Chestnut at 662.
Judged by the on-site inspection standard found at KRS 61.872(2), Mr. Burke's request was "adequate for a reasonable person to ascertain [its] nature and scope" and thereafter locate, and produce for inspection, the records sought. He wished to inspect records in KACo's custody relating to the six named cases, contracts between the Campbell County Fiscal Court and KACo or KALF, and records reflecting settlements amounts in the six named cases. As noted, he expressed a desire to inspect these records, and his request should have been assessed under the less stringent requirement found at KRS 61.872(2). All else being equal, he could not be required to "precisely describe" the records he wished to access by on-site inspection.
However, as an inmate confined in a state correctional facility, Mr. Burke "is uniquely situated with respect to the exercise of his rights under the Open Records Act. " 95-ORD-105, p. 3. Although "all persons have the same standing" under the Act, an inmate "must accept the necessary consequences of his confinement . . . ." Id. The most obvious of these is, of course, the restrictions placed upon his movements within the facility, and, more importantly for purposes of our analysis, his movements outside of the facility and the impediments to onsite inspection of public documents at a remote location. In 00-ORD-225, we analyzed the propriety of an inmate's demand that a correctional facility "bring records to him" while he was confined to disciplinary segregation, so that he could exercise the right to inspect those records. At page 4, we observed:
[T]he statute contemplates records access by one of two means, on-site inspection during the regular office hours of the agency or receipt of the records from the agency through the mail. [A]ccess via on-site inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3). Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. And, if he is prohibited from freely moving about in the facility, and therefore cannot conduct an on-site inspection in the records office, the facility is under no obligation to bring the original records to his cell for inspection.
In Blair v. Hendricks, 30 S.W.3d 802 (Ky. App. 2000), 5 the court held that an inmate was improperly denied access to records of a disciplinary committee at the correctional facility where he was housed. Recognizing that "the Kentucky Open Records Act makes no exception for records held by incarceration facilities or requests for public records made by prison inmates, " and that an inmate enjoys the same rights under the Act as any other records applicant, the court concluded that "[p]ublic agencies are required to supply copies of records to prison inmates upon request." Blair at 5, 6. Clearly, the court did not intend to invest inmates with greater rights than other records applicants by eliminating the requirement of prepayment for copies, or requiring agency employees to physically transport requested records to the inmate's current housing unit so that he might exercise his right to inspect. Because an inmate enjoys equal, but not greater, rights under the Act, he must comply with the requirements found at KRS 61.872(3)(b) and KRS 61.874(1) before accessing records by receipt of copies, and KRS 61.872(1) and (3)(a) before accessing records by on-site inspection. Just as the Open Records Act does not require a public agency to physically transport records to the home or office of a non-inmate, on demand, to facilitate inspection, so the Act does not require a public agency, including a correctional facility, to physically transport records to an inmate's housing unit, on demand, to facilitate inspection. Any other interpretation of Act is not supported by the language of the statutes and could not have been the intent of the General Assembly in enacting the Open Records Act, or the Court of Appeals in construing it.
00-ORD-225, p. 3, 4 (emphasis added). Under this line of reasoning, KACo has no obligation to locate the requested records and transport them to Mr. Burke to facilitate his right of inspection. Whatever hardship this may work upon him, until he can precisely identify the records sought, and prepay for copies, he is effectively foreclosed from accessing them. 6
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.
Distributed to:
David Burke, # 162305Timothy A. Sturgill
Footnotes
Footnotes
1 Those cases were identified as follows:
1. CAMPBELL CIRCUIT COURT, FIRST DIVISION, CASE NO. 06-CI-486, DAVON BURKE, PLAINTIFF VS. CAMPBELL COUNTY FISCAL COURT, ET AL, DEFENDANTS.
2. CAMPBELL CIRCUIT COURT, FIRST DIVISION, CASE NO. 03-CI-110, DAVON BURKE, PLAINTIFF VS. CAMPBELL COUNTY FISCAL COURT, ET AL.
3. CAMPBELL CIRCUIT COURT, FIRST DIVISION, CASE NO. 04-CI-112, DAVON BURKE, PLAINTIFF VS. GREG BUCKLER, ET AL, DEFENDANTS.
4. CAMPBELL CIRCUIT COURT, FIRST DIVISION, CASE NO. 10-CI-00731, DAVON BURKE, PLAINTIFF VS. GREG BUCKLER, ET AL, DEFENDANTS.
5. COMMONWEALTH OF KENTUCKY, COURT OF APPEALS, CASE NO. 2004-CA-1326-MR, DAVON BURKE, APPELLANT VS. GREG BUCKLER, ET AL, APPELLEES.
6. CAMPBELL DISTRICT COURT, SMALL CLAIMS, CASE NO. 03-S-00115-DAVON BURKE, PLAINTIFF VS. GREG BUCKLER, DEFENDANT.
2 KACo All Lines Fund.
3 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
4 KRS 61.872(3) provides:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
5 Overruled on other grounds in Lang v. Sapp, 71 S.W.3d 133 (Ky. App. 2002).
6 If Mr. Burke succeeds in precisely identifying the records he wishes to access by receipt of copies through the mail, and prepays for copies, KACo may review the records for exempt information, such as information properly characterized as work product or attorney/client privileged, before mailing them to him.