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 subverted the intent of the Open Records Act by disclaiming custody of public records 1 responsive to Colan Harrell's April 4, 2013, request. Mr. Harrell requested access to records relating to deaths and assaults that occurred in the Whitley County Detention Center from September 2005 to the present. The jailer denied custody of the records advising Mr. Harrell that he had "no records of any inmates that have died while incarcerated at the Whitley County Detention Center . . . [and] no videos or documentation of any deputy jailers relating to assaults or brutality." With reference to records relating to inmate deaths, the jailer referred Mr. Harrell to the Whitley County Coroner who "investigated each death" and to whom all records "were turned over." 2 In so doing, the jailer misdirected the applicant, Mr. Harrell, thus subverting the intent of the Act within the meaning of KRS 61.880(4). 3 Accord, 09-ORD-054 (City of Cumberland subverted intent of the Open Records Act by disclaiming custody of employee timesheets while these timesheets were being audited by a private auditor) . A copy of 09-ORD-054 is attached hereto and incorporated by reference.
At page 3 of 09-ORD-054, the Attorney General held that the City of Cumberland failed to assert a legally recognized basis for postponing access to records responsive to an open records request for employee timesheets when it advised the requester that the timesheets had been "boxed up for the auditor. " We reasoned:
[I]t [cannot] be persuasively argued that the City relinquishes custody and control of its records while those records are being audited. KRS 61.8715 recognizes:
This provision cross-references KRS 171.680(1) requiring "[t]he head of each state and local agency [to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency" and KRS 171.710 requiring "[t]he head of each state and local agency [to] establish such safeguards against removal or loss of records as [s]he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." Ultimately, then, an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). Nor should an agency be able to evade a legitimate request based on "the obvious fact that complying with [it] will consume both time and manpower . . . ." Id. at 666.
09-ORD-054, pp. 3, 4. Both KRS 61.8715 and Commonwealth v. Chestnut , above, speak directly to the requirement that public agencies exercise continuing control over, and management of, their records in a manner aimed at ensuring accountability and facilitating public access. Public agencies "cannot disclaim custody and control of the[ir] records, [and] must timely honor a request for nonexempt records" by preserving either the original or a copy on agency premises, or by retaining a right of access to them to fulfill records requests. Id. At a minimum, agencies must take appropriate measures to recover public records legitimately transferred offsite for a particular purpose, after that purpose has been satisfied, if the original or a copy has not been preserved onsite. 4
Because the jailer is foreclosed from surrendering custody and control of records of his agency, his response subverted the intent of the Open Records Act by misdirecting the applicant, Mr. Harrell, to the coroner whose continued possession of the jailer's records raises serious records management issues. Clearly, Mr. Harrell was entitled to request records relating to deaths at the Detention Center that were investigated by the coroner, and that were "prepared, owned, used, in the possession of, or retained by" the coroner, from the coroner. This did not, however, relieve the jailer of his duty to produce Detention Center records. The records identified in Mr. Harrell's request belong to the Whitley County Detention Center, and, as custodian and trustee, the current jailer "is responsible for establishing and maintaining an active, continuing program for the management of the records of the agency he serves . . ." 07-ORD-020 in order "to provide accountability of government activities" KRS 61.8715. It is incumbent on him to immediately retrieve from the coroner the records identified in Mr. Harrell's request, along with any other records he surrendered control of to the coroner, and disclose the nonexempt records to Mr. Harrell. 5 In accordance with KRS 61.8715, we have referred this matter to the Kentucky Department for Libraries and Archives for additional inquiry as the Department deems appropriate.
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 MobleyBob HammonsBarbara Teague
Footnotes
Footnotes
1 KRS 61.870(2) defines the term "public record" as:
all 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 No claim is advanced that any investigation into a death occurring in the Whitley County Detention Center is active or ongoing.
3 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
4 KRS 61.872(4), relating to misdirected requests, cannot be appropriately invoked in this context because that provision is available to agencies only in those cases where the requested records were neither "prepared, owned, used, in the possession of, [n]or retained by the public agency." KRS 61.870(2) (emphasis added).
5 The coroner is not responsible for investigating assaults. The jailer presumably did not surrender records documenting assaults on or by inmates to the coroner for investigation. Willful concealment of public records is, of course, punishable under KRS 61.991(2)(a). Mr. Harrell presents no evidence of willful concealment relative to Detention Center records documenting inmate assaults. We trust, therefore, that the jailer truthfully stated that no "documentation of any jailer relating to assaults or brutality" resides in his custody.