Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Madison County Detention Center ("MCDC") violated the Kentucky Open Records Act in the disposition of Dawn Crawford's June 6, 2017, request for copies of certain records relating to Marc Crawford, who died while an inmate at MCDC. To the extent that MCDC failed to provide access to the requested records, we find that it violated the Act.
Ms. Crawford's request, made through attorney Stephen F. Wilson, was addressed to Jailer Doug Thomas. Among the items requested were the following, which Ms. Crawford asserts she has never received:
All surveillance video and audio of Marc Crawford from the arrival at the Madison County Detention Center until transferred, including any interviews with the jail and/or medical staff, any time spent being booked, time spent in his cell, time spent in the visiting both, and time spent visiting family
All video from family visit on May 27, 2017 from 1745 through 1830
All video from family visit on May 30, 2017 from 1430 through 1600
All medical records to include treating physician and nurse practitioner from May 25, 2017 until transferred OOF.
All Vital sign and lab records
All medical interventions/records for Marc including transportation to and from outside medical care.
All Isolation Logs for Marc from May 25, 2017, 1100am, through May 31, 2017
Daily Shift Activity Log for May 29, 2017 both shifts
All Behavior Logs from May 25, 2017, 1100am through May 31, 2017
All Incident Logs from May 25, 2017, 1100am through May 31, 2017
It appears that the only written response Mr. Wilson received was an undated letter from Captain Greg Johnson, stating: "Due to volume of the records requested it cannot be compiled in 3 days. I am compiling the information and will send it to you as soon as possible."
Ms. Crawford initiated this appeal on August 9, 2017. She states that she received some records on an unspecified date, specifically as follows:
In regards to video request. I was given 6 CD's. Two were totally blank, showing information was once on disc but know [ sic ] erased. Two more CD's have small clips of time but not the information requested, in addition to, several videos have also been erased. The final two CD's have phone calls which have been erased and the two that did play are the same call.
She states, however, that the remainder of the items listed have not been provided. In a response to this appeal faxed on August 17, 2017, Captain Johnson states: "All requested materials were sent via U.S. Mail to Mr. Wilson at Billings law firm in a timely manner."
KRS 61.880(1) requires that a public agency make a disposition of an open records request within three days, excluding weekends and legal holidays. The only exception to this requirement which appears in the Open Records Act is KRS 61.872(5), which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
As we stated in 01-ORD-140:
[The Open Records] Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. . . .
. . . .
. . . [T]he Act "normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117. . . . Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." [ Id. ] Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain ." 01-ORD-38 [emphasis added].
Furthermore, in an open records appeal, "[t]he burden of proof in sustaining the action shall rest with the agency." KRS 61.880(2)(c).
In this instance, MCDC did not invoke KRS 61.872(5) or otherwise indicate that the records in question were in storage, in use, or otherwise unavailable. No detailed explanation of the cause for further delay was given. Nor has MCDC shown that conditions such as those described in 01-ORD-140 exist so as to warrant a delay in production of public records. Therefore, we find MCDC's response both procedurally and substantively in violation of the Open Records Act.
With regard to whether the requested records were ultimately produced, the representations of the parties are in direct contradiction. When a factual dispute exists as to whether access to public records has or has not been afforded, this office does not, in general, "act as a trier of fact" and therefore cannot conclusively resolve the dispute as to what occurred. 09-ORD-137; 09-ORD-120. On the face of the appeal, however, Ms. Crawford was entitled to the records. Since MCDC does not claim any exceptions to the duty to disclose public records under KRS 61.878, we can only conclude that to whatever extent MCDC failed to produce the records to Ms. Crawford, it was in violation of KRS 61.872(1). 1
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 should not be named as a party in that action or in any subsequent proceedings.
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