Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
On January 18, 2016, Maggie McDowell appealed the Laurel County Animal Shelter's and the Laurel County Sheriff's Department's disposition of her requests 1 for copies of "public records that relate to":
. Stephanie Fields
. Dewayne Fields
. Homeward Bound Canine Rescue & Rehabilitation
1818 Fariston Road
London, KY 40741
Ms. McDowell "specifically requested" a copy of the surrender agreement and all other records relating to the subjects of her request "including but not limited to notes, correspondence, reports, photograph, recording (audio and/or video), complaints, agreements, contracts, emails, text messages, and voicemails whether they are stored in a computer, on paper, or on other mediums . . . ." Because the appeals that followed arise from a nucleus of common facts, they are consolidated for purpose of open records analysis.
The Laurel County Animal Shelter responded to Ms. McDowell's request, through Laurel County Judge/Executive David Westerfield, on January 5, 2016, advising her:
[T]he information that you are requesting is a part of an ongoing criminal investigation and case. Therefore, we have been advised to refer all requests for records and/or information pertaining to this to the Laurel County Attorney's Office. 2
Judge Westerfield reaffirmed this position in a January 26 response addressed to this office. There is no indication in the record on appeal that the Laurel County Sheriff responded to Ms. McDowell's January 4 request or her January 8 follow-up inquiry concerning the status of her request.
In an email that reached this office after Ms. McDowell initiated her appeal, and notification of the appeal was transmitted to the parties, the Sheriff's office advised, "Our agency does not have any records to release for this incident. We did not work this case." In a response directed to the Sheriff's office, a copy of which was sent to the Office of the Attorney General, Ms. McDowell questioned the Sheriff's statement. She noted that she "filed an animal cruelty report with the Laurel County Sheriff's office on December 6" and that Deputy Rick Cloyd was dispatched to the scene. "At a minimum," she asserted, the Sheriff's office "has records related to [her] complaint." The Sheriff's office responded:
The London-Laurel County 911 Center, which is not affiliated with our department, maintains all call in complaints for service within the county. You can reach them at 606-878-7000. All we can advise is that there were no written reports from any officer for this incident, which likely means there was no arrest at this time or the complaint was unfounded.
On February 9, 2016, this office requested additional information from each agency, under authority of KRS 61.880(2)(c), 3 to facilitate our review of the issues on appeal.
From the agencies' responses to our questions, we learned:
1. The Laurel County Animal Shelter, the Laurel County Fiscal Court, and the Office of the County Judge/Executive 4 do not "have any recent records pertaining to Stephanie Fields, Dewayne Fields, [or] Homeward Bound Canine Rescue & Rehabilitation." (Emphasis added.) Minutes of an August 22, 2013, meeting at which Stephanie Fields spoke were located and transmitted to Ms. McDowell. The Sheriff's office "has no records pertaining" to the requested subjects.
2. The "Surrender Agreement" to which Ms. McDowell specifically requested access "is in the possession of the Laurel County Attorney's Office." 5
3. The animals removed from Homeward Bound Rescue "were placed with the Laurel County Animal Shelter by the Kentucky State Police [which] filed charges against Ms. Fields."
4. "Photographs of the individual dogs were taken upon delivery to the Animal Shelter" and the Animal Shelter "generated records of the dogs various placements to rescue organizations and individuals."
5. Although characterized as not "germane" to Ms. McDowell's request, the agencies agreed to provide her with copies of these records, for an unspecified fee, if they are deemed to be germane records and not otherwise excepted by KRS 61.878(1)(h).
6. No attempt to "describe the 'concrete risk of harm to the agency' in the prospective action" 6 was made notwithstanding our request that a description of the harm be provided if the agencies' denials were based on KRS 61.878(1)(h).
7. The Laurel County Sheriff's office's search for responsive records "was done internally via computer by searching for a Laurel County Sheriff's case number which is assigned whenever a case is opened by the Sheriff's office. None was found indicating that a case report was not generated by the responding deputy. "
8. Ms. McDowell's complaint was forwarded by the London-Laurel County 911 Center to the Sheriff's office "via digital radio and no electronic or written transmission or note exists."
9. Deputy Cloyd was dispatched to the scene to investigate but "did not believe the situation required any further investigation" or that a criminal complaint should issue. Therefore, the Sheriff's office "did not generate any record of the subject."
These responses reflect a failure on the part of both agencies to conduct an adequate search from responsive records and to substantiate any basis for denial of access to records that are quite clearly responsive to Ms. McDowell's request.
Before proceeding to the substantive issues on appeal, we note that the Laurel County Sheriff's office violated KRS 61.880(1) by failing to respond to Ms. McDowell's December 30, 2015, open records request in writing and within three business days. The Sheriff's office did not mitigate this violation by responding to her January 8, 2016, follow-up inquiry into the status of her request. Its terse response to this office's notification of receipt of Ms. McDowell's appeal was transmitted to us, and copied to Ms. McDowell, on January 25. Although his January 5 response to Ms. McDowell's January 4 request to the Laurel County Animal Shelter did not reach her, Judge Westerfield complied with KRS 61.880(1) by promptly responding, in writing, to that request and responding, in the same fashion, to her January 8 request for a status update.
Turning to the substantive issues presented in this appeal, we find that both agencies failed to conduct adequate searches for responsive records. In a decision issued in 1995, and consistently applied in open records disputes concerning the adequacy of an agency's search for responsive records, this office recognized:
[T]he Open Records Act does not require an agency to conduct 'an exhaustive exhumation of records,' Cerveny v. Central Intelligence Agency, 455 F. Supp. 722, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition 'when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight.' In re Agent Orange Products Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency ' to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested .' Cerveny, 445 F. Supp. at 775. Thus, the agency must make reasonable efforts to identify and locate the requested records.
95-ORD-96, p. 3, 4 (emphasis added). The agencies' belated disclosure of the existence of the requested surrender agreement, photographs, and rescued dog placement records, and the suggestion that "non-recent" records relating to these subjects exist, is indicative of an inadequate search. These records are clearly responsive to Ms. McDowell's request for the surrender agreement, as well as her request for photographs, reports, contracts, and agreements relating to the subjects. 7
With respect to the apparent nonexistence of records generated by Deputy Cloyd, or the Sheriff's office, in investigating Ms. McDowell's complaint, the record on appeal gives no indication that Deputy Cloyd was asked whether he made notes on his observations, took photographs, or interviewed anyone, at the scene. Clearly, such an inquiry constitutes a search method "which can reasonably be expected to produce the records requested." Responding to our KRS 61.880(2)(c) questions, the county advised that "there were no written reports from any office for this incident, which likely means there was no arrest at this time or the complaint was unfounded. " Ms. McDowell's request was not confined to reports. A simple inquiry to Deputy Cloyd would have conclusively settled the issue whether other responsive records exist. The search conducted by the Sheriff's office, as described, did not satisfy the standard for an adequate search first articulated in 95-ORD-96.
Neither agency cited a statutory basis for refusing to produce the records that were belatedly located. The County Attorney, responding on their behalf, expressed a willingness to release the records, upon payment of an unspecified fee, "if they are deemed to be relevant records and are not otherwise excepted by KRS 61.878(1)(h)." Although afforded three opportunities to do so, 8 the Laurel County Animal Shelter, the County Judge responding on its behalf, the Laurel County Sheriff's office, and the County Attorney responding on behalf of both agencies, did not address the harm that would result from disclosure of the "Surrender Agreement," the photographs taken of the dogs that were removed from Homeward Bound Canine Rescue & Rehabilitation, the paperwork generated by the Laurel County Animal Shelter when the dogs were placed in other locations, and any "[non]recent records relating to Stephanie Fields, Dewayne Fields, or Homeward Bound . . . ." Nor did they invoke any other statutory exception to disclosure of the records. KRS 61.880(1) 9 states 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. " (Emphasis added.) In construing this provision, the Kentucky Court of Appeals declared:
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. Therefore, we cannot agree . . . that [a] limited and perfunctory response to [a] request even remotely complie[s] with the requirements of the Act -- much less that it amounted to substantial compliance.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). In a subsequent opinion, the Kentucky Supreme Court determined that "[t]he agency should provide the requesting party and the court with sufficient information about the nature of the withheld record and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it."
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013). Pursuant to KRS 61.880(2)(c), 10 "the agency bears the burden of proof, and what it must prove is that any decision to withhold responsive records was justified under the Act." City of Ft. Thomas , 406 at 848. These agencies did not meet their burden of proof in denying Ms. McDowell's request.
The Laurel County Animal Shelter and the Laurel County Sheriff's office conducted inadequate searches for records responsive to Ms. McDowell's request before and after she initiated her appeal. It is incumbent on the Animal Shelter to search for any "non-recent" records relating to the Fields's and Homeward Bound and on the Sheriff's office to question Deputy Cloyd about the existence of any notes of his observations, photographs taken, or interviews conducted at the scene and, as well, to search for "non-recent" records relating to the Fields's and Homeward Bound. Unless they can articulate a plausible legal defense for withholding any additional records located, or the records located after this office tendered its KRS 61.880(2)(c) inquires, the agencies must provide Ms. McDowell with copies of the records 11 at a reproduction fee not to exceed ten cents per page.
Friend v. Rees, 697 S.W.2d 325 (Ky. App. 1985). 12 The "Surrender Agreement" to which Ms. McDowell specifically requested access, and about which she was given conflicting information as to its custody, is a record for which no exception is claimed and must also be mailed to her at the ten cents per page fee referenced above. Until these agencies have fulfilled these duties, their obligations under the Open Records Act will not be fully discharged.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Ms. McDowell submitted her request to the Laurel County Sheriff's office on December 30, 2015, and her request to the Laurel County Animal Shelter on January 4, 2016. This office received a response from the Laurel County Attorney addressing Ms. McDowell's complaints, and we therefore refer to the Shelter's and the Sheriff's department as the "agencies" collectively.
2 Ms. McDowell did not receive Judge Westerfield's response, prompting her to send a written inquiry into the status of her request on January 8. The response, issued on January 12, included a copy of the January 5 response and again advised that "due to the nature of this situation," all additional requests or questions would be referred to the Laurel County Attorney's Office."
3 KRS 61.880(2)(c) provides, "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed." (Emphasis added.)
4 Ms. McDowell's requests were not directed to the Fiscal Court or the County Judge/Executive.
5 According to Ms. McDowell, this statement conflicts with a statement made to her in a voicemail from the Laurel County Attorney December 30, 2015, a copy of which she retains, in which the County Attorney stated that he did not have a copy of the surrender agreement and advised her to direct her request to the Laurel County Judge/Executive.
6 City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The Attorney General's Office provided the agencies with a copy of this case to facilitate a response.
7 Ms. McDowell did not limit the parameters of her request to a particular time frame.
8 The agencies' first opportunity to invoke an exception and explain its application to the records withheld occurred when they responded to Ms. McDowell's initial requests per KRS 61.880(1). The second opportunity occurred when the agencies received notification of Ms. McDowell's appeal that included a statement that they could respond pursuant to 40 KAR 1:030 Section 2. The third opportunity occurred when they were asked to respond to this office's KRS 61.880(2)(c) questions, one of which expressly asked that, if they intended to rely on KRS 61.878(1)(h), they "describe the concrete risk of harm to the agenc[ies] that will result from premature release of the records."
9 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.)
10 KRS 61.880(2)(c) states, in relevant part, "The burden of proof in sustaining the action shall rest with the agency, . . . ."
11 Accord 14-ORD-143 (determining that agency failed to meet its burden of proof when it omitted citation to an exception authorizing nondisclosure of requested records).
12 In Friend v. Rees, 696 S.W.2d 325, 326 (Ky. App. 1985), the Kentucky Court of Appeals recognized that ten cents per page was "a reasonable charge of reproduction" for records provided in response to an open records request.