Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy 1 ("DPA") violated the Open Records Act's requirement to respond to an Open Records request within three days. We find that DPA technically violated KRS 61.880(1) by not responding to an inmate's Open Records request, but that DPA provided the responsive paper records pursuant to discovery proceedings in Lyon Circuit Court. The one record that DPA could not provide requires further explanation in this Open Records Decision, and so this Office cannot declare this appeal moot pursuant to 40 KAR 1:030, Section 6. 2
Thomas Holder, an inmate at the Kentucky State Penitentiary, made a request of the DPA for "a copy of [his] entire file including Grand Jury minutes and Bill of Particulars. . .[a]s well as a copy of the Kentucky Constitution, and any information you can provide [him] with to prepare [him]self for a jury trial. " The request was dated July 14, 2016, and Mr. Holder filed an appeal dated July 31, 2016, stating that he was "being completely refused all requests. . . Could you please address why my KORA request is being denied by the DPA."
B. Scott West, General Counsel, DPA, responded on behalf of the agency, by letter dated August 11, 2016. Mr. West explained that while Mr. Holder was proceeding pro se in the trial against him, attorney Clay Beineke had been appointed as hybrid counsel. 3 Mr. West related that Mr. Holder had filed a motion for a Bill of Particulars but that motion had been denied by Lyon Circuit Judge, C. A. Woodall, III. Judge Woodall granted Mr. Holder's motion for discovery and the Commonwealth Attorney, as is its practice, provided a DVD disk to Mr. Beineke, with the entirety of the contents of the discovery in the case. The Court ruled that the discovery be provided rather than require that a Bill of Particulars be prepared. Because Kentucky Corrections Policies and Procedure, Policy Number 9.II.A.6 4 prohibits inmates from possessing such disks, the disk was sent to Mr. Beineke. Mr. Beineke printed out all the documents on the disk and sent them to Mr. Holder with a cover letter dated June 13, 2016. The letter from Mr. Beineke explained that he was providing Mr. Holder with a copy of the discovery. In reference to Mr. Holder's Open Records request for records to the DPA, Mr. West states "[a]t the time his request was received, there was nothing in his request that he had not already been provided. As you can see from the Order denying his Motion for a Bill of Particulars, there is nothing that can be provided."
Failure to respond to the Open Records Request .
KRS 61.880(1) governs public agency responses to Open Records requests. It requires an agency to respond in writing within three days to a request for public records. There is no evidence that Mr. Holder's Open Records request, dated July 14, 2016, was answered by DPA until this appeal was instituted. Since DPA had the duty to respond to Mr. Holder's request within three days under KRS 61.880(1), we conclude that DPA procedurally violated the Open Records Act by not doing so.
Mr. West's response demonstrates that Mr. Holder did receive the paper documents that he had requested, however the date he received those documents is unclear from DPA's response to this appeal, although it appears to have been in mid-June. Although those records were provided, and that portion of the request could be considered moot pursuant to 40 KAR 1:030, Section 6, there are several remaining issues that must be addressed to fully answer this appeal.
Grand Jury minutes .
Mr. Holder requested that he be provided with "Grand Jury minutes. " Mr. West's response explained that the Commonwealth Attorney provided the disk containing the paper discovery in .pdf format and an audio recording of the grand jury hearing. That disk was not sent to Mr. Holder because of the prohibition in Kentucky Corrections Policy 9.6.II.A.6. The policies of the Department of Corrections are incorporated into regulation by 501 KAR 6:020, Section 1. Because DPA was prohibited by regulation from providing the disk to Mr. Holder, this Office cannot find that DPA violated the Open Records Act by not providing the Grand Jury minutes to Mr. Holder. 5 This office has recognized that the Department of Corrections is vested with broad discretion in matters related to the safety, security, and operation of its institutions. See, 94-ORD-40. This Office is not in a position to second guess the Department regarding its policy and regulation as to what constitutes contraband, but asks the Department to consider making the disk available to Mr. Holder in circumstances where he can listen to the Grand Jury minutes, but which do not violate Kentucky Corrections Policy 9.6.II.A.6. A copy of this decision will be provided to Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, for that purpose.
Failure to explain the nonexistence of a record .
As to Mr. Holder's request for a Bill of Particulars, the records of the Lyon Circuit Court provided by Mr. West conclusively show that no Bill of Particulars was ever created. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the record(s). The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Here, DPA failed to affirmatively answer Mr. Holder's request for a Bill of Particulars. DPA's failure to respond to the request for a Bill of Particulars is a procedural violation of the Open Records Act.
Request for copy of the Kentucky Constitution
Mr. Holder also requested a copy of the Kentucky Constitution, and Mr. West's response stated that DPA is not obligated under the Kentucky Open Records Act to provide such documents as legal reference materials.
The relevant statute regarding this particular request is KRS 61.870(2). That statute defines public records. In 99-ORD-35 and 99-ORD-181, the Attorney General construed this statute to exclude reference materials located in an inmate law library, including statutes, administrative regulations, and case law. Acknowledging that such materials may technically qualify as "public records" because they are "in the possession of or retained by a public agency, " we nevertheless concluded that their disclosure "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " and therefore could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. We contrasted these library reference materials with public records that fall within the broad parameters of KRS 61.870(2), and that "reflect the daily functioning, programs, and operations of [a correctional facility or the Department of Corrections]." Id.; see also, 99-ORD-181. As Mr. Holder presumptively has access to an inmate law library, DPA did not substantively violate the Open Records Act by not providing him with request record, but should have answered the request within three days as required by KRS 61.880(1).
Request for information .
Mr. Holder also requested "any information you can provide me with to prep[are] myself for a jury trial. " Although the DPA did not specifically respond to this request, and Mr. West did not address it in his response, this request should have been expressly denied by the DPA as it appears to be a broad request for information rather than a request for records. Kentucky's courts have determined that a records request satisfies KRS 61.872(2) if it is "adequate for a reasonable person to ascertain its nature and scope." Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). This Office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the Open Records provisions. Again, DPA technically violated the Open Records Act by not answering this request in writing.
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 proceedings.
Footnotes
Footnotes