Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Franklin County Regional Jail violated the Kentucky Open Records Act in its disposition of attorney Sheilah Galvez Kurtz's August 6, 2012, request for records relating to an incident involving her clients' daughter during her confinement in the jail. For the reasons that follow, we find that the jail's response was not in compliance with the Act.
In her August 6 letter to the jail, Ms. Kurtz wrote in part as follows:
On August 3, 2012, my clients received a report that their daughter was stripped of her clothes and ran naked [through] the detention center. For this reason, and for the purpose of applying for an emergency order from a district judge to place my clients' daughter under medical and psychiatric care as soon as possible, I am making an open records request about this incident involving Tiana Joy Chidester. I would like to request copies of any and all incident reports in connection with Tiana Joy Chidester while she remained in your custody.
Further, I am aware that Franklin District Judge Chris Olds has ordered the transport of my clients' daughter to Eastern State Hospital as early as July 12, 2012 in connection with Franklin District Court Case No. 12-M-0693. Despite Judge Olds' order to have Tiana transported to Eastern State Hospital for mental evaluation and treatment, she has remained in your facility. I would like to make an open records request why her transport to Eastern State Hospital has not been effected as of this writing.
A reply dated August 9, 2012, from Captain Rachel O. Hensley, Director of Administration at the jail, stated as follows:
This is in response to your open records request dated August 6, 2012 regarding Tiana J. Chidester. Per court order and relevant law, these records are exempt per KRS Ch 61.878.
On July 12, 2012 Franklin District Court ordered the record sealed. If further assistance is needed, please contact this office.
Ms. Kurtz initiated this appeal on August 23, 2012.
In her appeal, Ms. Kurtz points out that the order from District Judge Olds (a copy of which she has provided to this office) places no records under seal beyond "the assessment and treatment recommendations, if any," that will result from a mental health evaluation of Tiana Joy Chidester to be conducted at Eastern State Hospital. Therefore, she argues, any incident report from the jail is not under seal and must be open to inspection because it is not exempt from the provisions of the Open Records Act.
The Franklin County Regional Jail responded on September 4, 2012, through County Attorney Rick Sparks. With regard to Ms. Kurtz's request for records pertaining to the delay in transporting Ms. Chidester to Eastern State Hospital, Mr. Sparks advises:
There are no such records. Judge Olds['] order states that the inmate be transported to Eastern State "at a date and time to be determined by Eastern State." After the entry of the order, staff with Eastern State called FCRJ to say they would contact them when a bed became available. When Eastern State called to say a bed was available she was immediately transported. There was no delay by FCRJ, therefore no records of the alleged delay.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the jail's representation that no such records exist. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).
In regard to the jail's nondisclosure of the incident report, Mr. Sparks states as follows:
[S]taff at the jail received an inmate complaint regarding Ms. Chidester's behavior on August 3, 2012 which was typed into an incident report form. The FCRJ has informed me that they are still reviewing the alleged incident, but as Ms. Chidester was transported to Eastern State soon after the complaint, the incident is still under active review and as such is not releasable at this time. As soon as the incident investigation is final the records, appropriately redacted, will be released to Ms. Kurtz.
?
While there may have been a misunderstanding by FCRJ as to the scope of Judge Olds' order, I hope this response corrects and clarifies FCRJ's position to the records request. By copy of this, Ms. Kurtz will know that the records that exist, when releasable, will be forwarded to her.
KRS 61.880(1) provides that "[a]n 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." Neither the initial response to Ms. Kurtz's request on August 9, 2012, nor the response to her appeal on September 4, states any specific exception authorizing the withholding of the incident report. We therefore have no alternative but to find that the disposition of this request was in violation of the Open Records Act. See, e.g., 07-ORD-241; 93-ORD-6 (agencies failed to sustain their statutory burden where no exception cited).
If we were to look for an exception to fit the argument presented by the jail, which we are not required to do, the closest match would be KRS 61.878(1)(h). There is no generalized exception under the Open Records Act for "incident investigations" or matters "under active review." KRS 61.878(1)(h), however, exempts "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. "
The Franklin County Regional Jail has not alleged any of the factors necessary to invoke KRS 61.878(1)(h). It does not claim to be a law enforcement agency or an agency involved in administrative adjudication. It does not claim that the incident report was compiled in the process of detecting and investigating statutory or regulatory violations. Nor does it allege or explain any harm to the jail that would result from release of the report, or claim that the information is to be used in a prospective law enforcement action or administrative adjudication. In short, the jail has neither identified the exception on which it relies nor alleged facts that would support an exception under the Open Records Act. Cf. 03-ORD-131; 06-ORD-049 (detention centers cited KRS 61.878(1)(h) but failed to meet their burden to invoke the exception). Therefore, it has failed to meet its burden to justify withholding the incident report.
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:
Sheilah Galvez Kurtz, Esq.Capt. Rachel O. HensleyRick E. Sparks, Esq.