Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Frederick Robb initiated this Open Records Appeal by letter dated June 1, 2017, challenging the disposition by the Pike County Coroner of his May 9, 2017, request for "a copy of the Coroner's report (toxicology, pictures, personal effects, etc.)" related to Pike Circuit Court Case No. 04-CR-00161; Mr. Robb advised that Detective Howard of the Kentucky State Police, Post 9, investigated his case, KSP Case No. 09-04-1392. Attached to Mr. Robb's June 1 Appeal was a copy of a "Pike County Coroner Investigation Report" (just over two pages long) in addition to a copy of the envelope in which Mr. Robb received that record on May 25, 2017; no written response by the Coroner was included.1 On appeal Mr. Robb maintained that a Coroner's Report should include, among other things, a chain of custody for the evidence collected, the autopsy report, toxicology report, death certificate, pictures of the evidence, etc.
Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Coroner Russell Roberts and Pike County Attorney Howard Keith Hall on June 7, 2017, 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 Tuesday, June 13, 2017," 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. Based upon the limited evidence of record, this office must assume that no written response accompanied the record that Mr. Robb received though additional responsive documents might very well exist.
KRS 61.880(1) provides that a "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. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 12-ORD-211. "Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested," the Kentucky Supreme Court has observed, "in ORA cases only the agency knows what is in the records." City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The Court suggested that a public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." Id. at 852. See 14-ORD-039; 15-ORD-003.
The Coroner had two opportunities to fully discharge his duty under KRS 61.880(1); first, upon receipt of Mr. Robb's May 10, 2017, request, and second, upon receiving the Notification of his Appeal from this office.2 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 the Coroner apparently provided Mr. Robb with a copy of a single record yet failed to issue a written response of any kind, the Coroner necessarily failed to either advance a legal argument in support of his apparent withholding of the remaining documents identified or explain their nonexistence.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." See Edmondson v. Alig , above. The Coroner must provide Mr. Robb with a copy of any existing record(s) in the custody of the agency which is responsive to his request unless the Coroner satisfies his 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."3 If the Coroner "does not have custody or control" of any records identified in Mr. Robb's request, the Coroner "shall notify [Mr. Robb] 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 the Coroner performs these functions, he 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 must be notified of any action in circuit court, but must not be named as party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The return address on the envelope differed from that to which Mr. Robb directed his request and to which this office consequently directed the Notification of his Appeal; however, the request apparently reached the Coroner as he sent a copy of the Report in response without accompanying explanation. The address to which the Notification was mailed is the valid address for Community Funeral Home, where the Coroner is employed, according to its website. If the Coroner did issue a written response to Mr. Robb, in addition to forwarding a hard copy of the "Investigation Report," as required under KRS 61.880(1) if the Coroner withheld any records or information, the record on appeal contains no information to that effect.
2 The record lacks evidence confirming the date on which the Coroner actually received the request; accordingly, this office is unable to conclusively determine whether his May 25 response was timely under KRS 61.880(1), pursuant to which a written response should have been mailed within three working days following receipt of the request.
3 If no records exist which are responsive to Mr. Robb's request, the Coroner must promptly indicate as much to Mr. Robb 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 Coroner must ascertain whether any existing records are responsive to Mr. Robb's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate-nothing more, nothing less.