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 Greenup County Detention Center (GCDC) violated the procedural and substantive requirements of the Open Records Act in denying Jailed publisher Mark Thompson's April 12, 2012, request for "all inmate booking information . . . for inmates processed at GCDC from March 30, 2012, through April 11, 2012." GCDC violated KRS 197.025(7) by failing to issue a written response to Mr. Thompson's request within five business days and KRS 61.880(1) by failing to "include a statement of the specific exception [, codified at KRS 61.878(1)(a) through (n),] authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record[s] withheld." Although portions of Mr. Thompson's request are improperly framed as requests for information, he is entitled to copies of booking records, including photographs, based on a line of decisions dating back to 1981.
Mr. Thompson specifically requested access to:
1. First and last name and age of the inmate;
2. Booking photo of the inmate;
3. City address of residence of inmate;
4. Arrest description of the inmate.
Having received no written response to his request, Mr. Thompson contacted Jailer Mike Worthington by telephone, confirming the content of that conversation in a follow-up letter dated April 19, 2012. Mr. Thompson agreed to "reduce the amount of information . . . by only requesting approximately 20 to 25 files every 14 days as opposed to [GCDC's] entire booking of inmates. " In a letter bearing the same date, Greenup County Attorney Michael C. Wilson notified Mr. Thompson that he would evaluate the request and "get you a response within 2 weeks from the date of this letter." Having again received no written response, Mr. Thompson contacted Mr. Wilson nine weeks later in an attempt to ascertain the status of his request. On June 11, 2012, he initiated this appeal to the Attorney General.
Upon receipt of this office's notification of Mr. Thompson's appeal, GCDC objected to this request on the grounds that it was:
1. Vague.
2. Overly broad.
3. Required information which is not required under the Open Records Act.
4. Made no arrangements for payment.
"This," Mr. Thompson advised the Attorney General in a fax transmitted on June 26, was "the first I have been officially notified by receiving a copy of their denial through you." That denial was procedurally deficient and substantively incorrect.
GCDC violated KRS 197.025(7) and KRS 61.880(1), by failing to respond to Mr. Thompson's request in writing within five business days. KRS 197.025(7) extends the deadline for response to an open records request submitted to the Department of Corrections from three days, as provided for in KRS 61.880(1), to five days. It has been construed to apply to correctional facilities and jails. See, e.g., 00-ORD-182. It has not been construed to relieve the Department of Corrections, correctional facilities, or jails of their duty to issue a timely written response to an open records request. Id. Mr. Thompson submitted his request on April 12, 2012. He first learned of the denial of his request on June 25 when he received a copy of GCDC's response to this office's notification of his appeal. Nearly two and one-half months elapsed from the date of request to the date on which the agency took final action. GCDC's inaction constituted a clear and direct violation of KRS 197.025(7) and KRS 61.880(1). 1
The rationale belatedly advanced by GCDC to support nondisclosure of the records identified in Mr. Thompson's request is also legally unsupportable. To begin, Mr. Thompson's request was neither vague nor overly broad. In Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008), the Kentucky Supreme Court established the standard by which we assess the adequacy of a request to inspect public records, declaring that such a request need only be "adequate for a reasonable person to ascertain [its] nature and scope." The Court expressly rejected the agency's claim that the disputed request was "too broad and overly vague. " Emphasizing the presumption of openness 2 and the principle that "any person" enjoys an equal right of access to nonexempt public records, 3 the Court determined that the law "identifies no class or type of persons . . . who are held to a more stringent standard when submitting open records requests," and that the agency "bears the burden to rebut the strong presumption in favor of disclosure. " Id. at 660.
Turning next to the adequacy of the request, the Court opined:
[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 . . . . [I]t 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 requester] described the records he wanted to see . . . . It appears obvious to us that [his] request was adequate for a reasonable person to ascertain the nature and scope. [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 . . . that he had never seen. [Footnote omitted.]
Mr. Thompson requested booking information 4 and photos from March 30, 2012, to April 11, 2012, for inmates processed by GCDC. Mr. Thompson's request satisfied the standard for onsite inspection found at KRS 61.872(2) insofar as it was adequate for a reasonable person to ascertain its nature and scope. Moreover, his request satisfied the standard for access by receipt of copies through the mail found at KRS 61.872(3)(b). The standard for access by receipt of copies through the mail is a higher one, requiring a "precise" description of records that are "readily available within the public agency." Mr. Thompson's request was "precise," insofar as he sought access to booking information and photos for all inmates processed by GCDC in the specified period. The booking records and photos which he requested were also readily available insofar as they are current records maintained on agency premises rather than archived records stored offsite. His request was neither vague nor overbroad, and submission of that request triggered GCDC's duty to promptly locate, retrieve, and afford him access to the records sought. Accord, 12-ORD-082.
No authority exists for GCDC's position that disclosure of booking records and photos "is not required under the Open Records Act. " In an early opinion, the Attorney General recognized that:
It is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail. The fact that knowledge of their incarceration may be embarrassing to them or to members of their family is of secondary importance.
OAG 81-395, p. 1; see also, OAG 83-212; OAG 91-131; 02-ORD-203; 04-ORD-055; 05-ORD-094. In the latter decision, we quoted from Detroit Free Press Inc. v. Department of Justice, 73 F.3d 93, 97 (6th Cir. 1996), an opinion of the Sixth Circuit Court of Appeals in which the court recognized that release of mug shots of federal indictees was not an invasion of the indictees' privacy rights, reasoning that "the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies." Any lingering doubt as to the accessibility of booking records and photos is surely dispelled by the existence of Kentucky JailTracker, a "corrections management system designed for corrections and law enforcement professionals . . . that provides instant online access to information about offender population and facility use, including inmate physical description with photos, incarceration history, . . . and much much more." http://www.jailtracker.com. Fifty-nine Kentuckyjails utilize JailTracker. Greenup County Detention Center does not. Mr. Thompson therefore proceeded under the Open Records Act to obtain GCDC's booking records and photos. GCDC is statutorily obligated to comply with his request. 5
GCDC cannot avoid this duty by asserting that Mr. Thompson "made no arrangement for payment." GCDC may require payment of a reasonable fee based on the actual cost of reproduction, excluding staff cost, as well as the cost of mailing, 6 in advance of production of the records per KRS 61.872(3)(b) and KRS 61.874(1), but it cannot shift the duty to Mr. Thompson to make arrangements for payment before it has attempted to impose a reasonable reproduction fee. To suggest otherwise places the proverbial cart before the horse. Again, GCDC's position is legally unsupportable.
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:
Mark ThompsonMike WorthingtonMichael C. Wilson
Footnotes
Footnotes