Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Department for Public Advocacy ("DPA") violated the Open Records Act in failing to timely respond to a request, and in losing a public record. We find that DPA procedurally violated the Open Records Act in failing to timely respond to a request, and although we cannot find that DPA substantively violated the Open Records Act in failing to produce a record it claims to have lost, we refer this matter to the Department for Libraries and Archives.
Jerry Harriston ("Harriston") submitted three substantively identical open records requests addressed to Wendy A. Craig, Jennifer Milligan, and Barbara Carnes at the DPA, as well as Robert B. Bowling, all dated Feb. 17, 2014. Each request sought all documents in any form pertaining to his case. Harriston's appeal was received by this office on Apr. 15, 2014. Harriston stated that "from August 11, 2011 to February 17, 2014, petitioner has exhausted every available means to obtain his records, documents, trial transcripts, trial c.d.'s and all pertinent information in the possession of the Commonwealth, and everything delivered to his trial counsels Hon. Wendy Craig and Hon. Barbara Cannes." Harriston sought "an Order directing the DPA office and the Circuit Court Clerk to produce and release these records, documents, transcripts, c.d.'s and any other pertinent information in their possession." Harriston claimed to have received no response to the requests to Craig and Milligan as of Apr. 8, 2014. Harriston attached a response from DPA dated April 4, 2014, which acknowledged receipt of a records request on Apr. 3, 2014, stated that Carnes was initially his attorney, but it was discovered at the onset that his case was a conflict for DPA, and Craig subsequently served as his attorney. The response further stated that "the Bell office does not have your file and I cannot complete your request for information. The DPA has a three (3) year archiving policy; since your case was a 2010 case tried in 2011, your file may not be at the London office currently." Harriston also attached a response from Yoakum Law Office dated Feb. 21, 2014 stating that Bowling was no longer in private practice and that Harriston's letter would be returned.
DPA responded to Harriston's appeal on Apr. 24, 2014:
As explanation for the delay in getting Mr. Harriston's file to him, please understand our London DPA Office never had his trial transcripts. Those transcripts would be the CDs of the trial, which are in possession of the Bell County Circuit Clerk's Office. In regards to the attorney file, Assistant Public Advocate Wendy Craig, who tried the case has been unable to locate her file, but believes she turned it in to the London DPA Office for return to the Bell County DPA Office. The attorney file including his discovery has not been located, despite extensive and multiple searches by our London DPA Office, including a search of the archive documents to determine if the file had been archived, but it has not been. Stated simply, no one knows what happened to this particular file.
KRS 61.880(1) provides that "each public agency, upon any request for records . . . shall determine within three (3) days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." While there is some evidence that DPA received at least one request on Apr. 3, 2014 and responded on Apr. 4, 2014, Harriston has provided copies of multiple requests dated Feb. 17, 2014. DPA does not dispute that it received these requests or the date on which they were sent. Accordingly, we find that DPA committed a procedural violation of the Open Records Act in failing to timely respond to a request for records.
More troubling is DPA's loss of the entire case file. DPA's Records Retention Schedule Series 03632 - Attorney's Litigation Case File - Circuit Court provides, "retain in Agency for two (2) years after case closure; transfer to State Records Center to be retained twenty-eight years; destroy. Total retention is thirty (30) years." DPA's records retention schedule requires it to keep the file for two years, and then transfer it to the State Records Center to be maintained for twenty-eight additional years. In this case, DPA openly admits to losing the file. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. However, "loss or destruction of a public record creates a rebuttable presumption of records mismanagement." 11-ORD-104. Although this office cannot find as a matter of law that DPA violated the Open Records Act, DPA nonetheless "subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records, 'thereby frustrating the public's right of access.'" 11-ORD-104. This subversion is even more grievous given the sheer size of a criminal file in a case that went to trial, and the obvious importance of the interests at stake in the underlying proceeding. It is difficult to conceive of records that would be more important or necessary to properly retain, and correspondingly baffling to explain why they were not. To simply lose an entire criminal defendant's case file represents the apex of disregard for proper record retention and procedures. "Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted." 13-ORD-028; 11-ORD-104.
Harriston additionally seeks a decision from this office compelling the Bell County Circuit Court Clerk to produce records pertaining to him that it has in its possession. First, Harriston cannot request a circuit court clerk to provide records in the context of an appeal against the DPA. Further, this office has long held that "courts and judicial agencies are not bound by the provisions of the Open Records Act . . . disputes relating to access to court records must be resolved by the court." 98-ORD-6. Accordingly, Harriston must seek court records from the Bell County Circuit Court Clerk, and not this office.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Jerry Harriston # 154091Jim LambBrian Scott West