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 Madison County Detention Center violated the Open Records Act in failing to respond to Marc Crawford's open records request of August 18, 2016, relating to records concerning his arrest and detention. We conclude that the failure of the Detention Center to respond to Mr. Crawford's request, and its failure to justify its lack of a response, constitute a violation of KRS 61.880(1).
Having received no response to his request from the Madison County Detention Center, Mr. Crawford initiated this open records appeal on September 14, 2016. On that same day, this office sent a copy of Mr. Crawford's letter of appeal, along with notification of receipt of the open records appeal, to the Madison County Detention Center. Although that notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no written response to the notification of the appeal. Mr. Crawford advised this office telephonically, after the institution of this appeal, that the Detention Center had provided him with all but one of the records he had requested. Mr. Crawford had not received the "hourly monitoring log of vital signs and activity for Marc Crawford on 7/29/16 from 1600 to 7/30/16 at 12 pm." As Mr. Crawford had not received that record or a response from the Detention Center regarding that record, he declined to withdraw his Open Records appeal. The Detention Center, through Captain Greg Johnson, telephonically advised this office that the Detention Center did not have the hourly monitoring record requested by Mr. Crawford.
The Madison County Detention Center's failure to respond to Mr. Crawford's request in a proper and timely fashion constitutes a violation of KRS 61.880(1). That statute 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.
The Madison County Detention Center had not one, but two, opportunities to comply with KRS 61.880(1), by responding to Mr. Crawford's original request, and by responding to his request upon receipt of this office's notification of appeal. The Madison County Detention Center failed to do so.
Because the Madison County Detention Center did not respond to Mr. Crawford's requests, or this office's notification of appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency . . . ." The Madison County Detention Center's failure to respond to the open records request is tantamount to a denial of that request without specific support in the form of "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. " KRS 61.880(1). 02-ORD-116. Accordingly, the Detention Center should immediately respond to Mr. Crawford's request or otherwise make the records available for his inspection, unless the agency can meet its burden of proof by articulating a basis for denying access under the exceptions set out in KRS 61.878(1). 1 Having failed to meet the statutorily assigned burden, we find that the Madison County Detention Center committed a substantive, as well as a procedural, violation of KRS 61.880(1).
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 must 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 If no records exist which are responsive to Mr. Crawford's request, the Detention Center must affirmatively so advise Mr. Crawford 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 Detention Center must ascertain whether records exist which are responsive to Mr. Crawford's request and promptly advise him of its findings.