Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary: Having neglected to advance a statutory basis for the apparent denial of the request, despite being afforded two opportunities, the Bell County Detention Center must provide the requester with a copy of any existing responsive document(s) in the custody of the agency upon receipt of the copying fee and postage in accordance with KRS 61.872(3)(b), if appropriate, unless it can satisfy its burden of proof under KRS 61.880(2)(c). BCDC violated KRS 61.880(1) and 197.025(7) in failing to issue a timely written response to request.
Open Records Decision
Randel Jones initiated this appeal by undated letter challenging the failure of the Bell County Detention Center (BCDC) to issue a timely written response upon receipt of his June 8, 2015, request for "one (1) copy of my 'Order of Commitment' and one (1) copy of any and all documents related to my arrest and booking into BCDC on June 2, 2015." According to Mr. Jones, the request was hand-delivered to Jailer Gary Ferguson on June 8, 2015, and "more than ten (10) working days have passed" with no response; his appeal was received in this office on July 2, 2015. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Jailer Danny Ferguson and the Bell County Attorney on July 10, 2015, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Thursday, July 16, 2015," this office has not received a written response from the agency or its counsel nor has anyone contacted this office to request additional time in which to submit a response. Neither of the Notifications was returned as being undeliverable. This inaction by the agency constitutes a clear violation of KRS 61.880(1) and 197.025(7).
As a public agency, BCDC must comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, 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 . An 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 . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) "KRS 197.025(7) extends the deadline for response to a 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." 12-ORD-037, p. 3. Accordingly, BCDC violated KRS 61.880(1) and 197.025(7) in failing to issue any written response to Mr. Jones' request.
BCDC had two opportunities to discharge its duty under KRS 61.880(1) and 197.025(7); first, upon receipt of Mr. Jones' June 8, 2015, request, and second, upon receiving the Notification of his appeal from this office. A public agency such as BCDC not permitted to elect a course of inaction. The Attorney General has consistently recognized that procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5; 05-ORD-190; 09-ORD-186; 12-ORD-085. Inasmuch as BCDC did not respond to Mr. Jones' request, it necessarily failed to advance a legal argument in support of its apparent denial of that request.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996)(emphasis added). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id .; 01-ORD-183, pp. 2-3. Thus, BCDC must provide Mr. Jones with a copy of any existing record(s) in the custody of the agency which is responsive to his request unless the BCDC can satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the agency's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 1 If BCDC "does not have custody or control" of any records identified in Mr. Jones' request, BCDC "shall notify [Mr. Jones] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Compliance with provisions of the Open Records Act "is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5; see 11-ORD-042. Until BCDC performs these functions, it stands in violation of the Open Records Act. See 09-ORD-186; 10-ORD-093.
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 party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 If no records exist which are responsive to Mr. Jones' request, BCDC must promptly indicate as much to Mr. Jones in writing. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the BCDC must ascertain whether any existing records are responsive to Mr. Jones' request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.