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 Whitley County Jailer's response to Colan Harrell's March 28, 2013, request for records relating to lawsuits against the Whitley County Detention Center from September 2005 to the present, including subpoenas, records reflecting an intent to sue, correspondence exchanged by the jailer and his employees and the Kentucky Association of Counties or other agency counsel, and video recordings relating to "alleged wrongdoing or injuries to inmates, " was procedurally and substantively deficient. 07-ORD-002, recognizing that litigation records, regardless of where they are located, are "'prepared, owned, and used at the instance of'" the public agency against which the litigation is brought, and are essentially the agency's records, is dispositive of the issues presented in this appeal. As in that open records decision, we find that the jailer is "obliged to review, or direct its contract attorney to review, the responsive file[s] . . . [and] produce the [nonexempt] records for [Mr. Harrell's] inspection or describe, in general terms, the records withheld and the basis for denial." 07-ORD-002, p. 8. Additionally, we find that the jailer is obligated to conduct a search of records maintained by the jail to ascertain whether additional nonexempt records responsive to Mr. Harrell's request exist, including correspondence between the jailer, his employees, and the jailer's attorney(s), and videotapes documenting injuries to inmates.
By letter dated April 1, 2013, Whitley County Jailer Ken Mobley notified Mr. Harrell that because "'all' documents relating to any litigation pending or settled against the Whitley County Detention Center [had] been turned over to KACo and various attorneys[, he did] not have 'any' documents in [his] possession to present to [Mr. Harrell]." In supplemental correspondence directed to this office after Mr. Harrell initiated this appeal, Mr. Mobley advised this office that "[a]ll records have been turned over to [his] attorney Jason Williams." For the reasons stated in 07-ORD-002, this response was inadequate.
In 07-ORD-002, this office determined that a city's response to a request for the nonexempt records contained in its litigation files was deficient based on the city's claim that because the files were maintained in the offices of its contract attorneys it "ha[d] no file." 07-ORD-002, p. 6. Relying on past open records decisions, we rejected the city's claim, determining that "[i]t is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " Id. citing City of Louisville v. Brian Cullinan , No. 1998-CA-001237-MR and Cross Appeal No. 1990-CA-001305-MR (Ky. App.). 1 We reasoned that the requested litigation files were held by the city's attorneys "at the instance of and as custodian on the [public agency's] behalf." 07-ORD-002, p. 7. At page 8 of that decision, we concluded:
Regardless of where the pending litigation file is located, it is "prepared, owned, and used at the instance of the city," and is therefore "essentially the city's [file] . . . ." Cullinan at 4. Although the city's contract attorney holds it "as custodian on the city's behalf," id. , it is its nature and purpose that is determinative of its status as a public record. We therefore find that the city is obliged to review, or direct its contract attorney to review, the responsive file to determine if any nonexempt records, such as billing statements or pleadings filed with the court, reside in the file. If so, the city must produce these records for [the requester's] inspection, and describe, in general terms, the records withheld and the basis for denial. This would include records protected from disclosure by the attorney client privilege, or that constitute work product, as long as all of the elements of these privileges are met. See Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001); 02-ORD-161; 01-ORD-246.
The same duties rest with the Whitley County Jailer. Neither he nor any other public official or agency can frustrate access to public records "by allowing them to indefinitely reside in the custody of a private agent" or, in the jailer's case, KACo. Id. at 6, note 5. 2 A copy of 07-ORD-002 is attached hereto and incorporated by reference.
With regard to the remaining records identified in Mr. Harrell's request, we find that the Whitley County Jailer's response entirely failed to address the existence of subpoenas, "intent to sue" letters, correspondence exchanged by the jailer, and his employees, with KACo and other agency attorneys, and videorecordings documenting inmate mistreatment or injuries. If they exist, some of these records may reside in the custody of the jailer's counsel; others, though they reside in the jailer's custody, may be exempt from public inspection under one or more exceptions to the Open Records Act. The jailer's silence compels us to speculate. The Open Records Law leaves no room for speculation. KRS 61.880(1) requires a public agency that receives an open records request to "determine within three days, excluding Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and [to] notify the person making the request, within the three day period of its decision." A "limited and perfunctory response," such as that issued by Mr. Mobley, does not "even remotely compl[y] with the requirements of the Act . . . ."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
Mr. Mobley must therefore immediately supplement his response to Mr. Harrell's request by advising him whether the remaining requested records exist and when he may inspect, or obtain copies of, them. If it is the jailer's position that any of the remaining requested records are exempt, he should immediately so advise Mr. Harrell in writing, generally describe the records withheld, and identify the statute(s) authorizing nondisclosure. Until he has done so, the jailer's duties under the Open Records Law will not be fully discharged.
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:
Colan HarrellKen Mobley
Footnotes
Footnotes
1 KRS 61.870(2) defines the term "public record" as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
2 In 2010, the General Assembly extended the application of the Open Records and Open Meetings Acts to KACo. KRS 65.312.