Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Jessamine County Fire District ("JCFD") violated the Open Records Act ("Act") in the disposition of a request for records submitted by Gerry Calvert, II ("Appellant"). For the reasons stated below, we find that JCFD violated the Act in multiple ways, but also properly denied the request as to some of the requested records.
Background
On March 4, 2019, Appellant submitted a request for records with JCFD seeking 11 categories of records he described as follows:
1. Any policy which governs your agency's response to open records requests.
2. Any and all complaints of fraud, waste, abuse, mismanagement, retaliation, hostile work environment and/or discrimination made by an employee or volunteer on or after January 1, 2018.
3. All investigation findings which resulted from any complaint identified in response to the above request.
4. All investigation findings, fee agreements, communications, emails, letters, or other documents to or from any investigator hired by the Board of Trustees on or after January 1, 2018.
5. All documents, e-mails, messages, or other communications made with any member of the Board in preparation for the upcoming March 11, 2019 [Board meeting].
6. All documents, e-mails, messages, or other communications made by any JCFD employee or volunteer and any member of the Board.
7. Any e-mail sent or received from Michael Rupard, Gerald Wheeler, Danny Eades, Steve Proffitt, Michael Cassidy, Michael Garrett, Blake Digue, Andres Stramer, and/or Jason Walton from October 3, 2018 until March 4, 2019.
8. All policies, procedures, standard operating guidelines or other similar documents which govern the actions and employment of any employee or volunteer for JCFD.
9. All time and payroll records along with any run logs for Michael Rupard, Gerald Wheeler, Danny Eades, Steve Proffitt, Michael Cassidy, Michael Garrett, Blake Digue, Andrew Stramer, and/or Jason Walton from October 3, 2018, until March 4, 2019.
10. Complete personnel files for Michael Rupard, Gerald Wheeler, Danny Eades, Steve Proffitt, Michael Cassidy, Michael Garrett, Blake Digue, Andrew Stramer, and/or Jason Walton, including any disciplinary actions.
11. Any text messages, by and between Michael Rupard, Gerald Wheeler, Danny Eades, Steve Proffitt, Michael Cassidy, Michael Garrett, Blake Digue, Andrew Stramer, and/or Jason Walton from October 3, 2018, until March 4, 2019.
JCFD did not respond to the request. On March 12, 2019, Appellant sent another letter to JCFD, requesting a response, but JCFD did not respond. On March 24, 2019, Appellant faxed an appeal to this office.
On March 27, 2019, attorney William K. Moore responded to Appellant's open records requests on behalf of JCFD. Mr. Moore stated, "[JCFD Fire Chief Mike Rupard] forwarded me your letter of March 4, 2019 for response. The Fire District has no administrative staff to respond to your request." Regarding request number 1, Mr. Moore stated, "[t]he Fire District has no policy concerning open records requests other than the Kentucky Revised Statutes." Regarding requests number 2, 3, and 4, JCFD stated that it "has received two such complaints that are presently the subject of an administrative disciplinary proceeding under KRS 75.130 that is pending before the District's Board of Trustees." JCFD stated copies of the responsive records, "will be provided when the disciplinary proceeding is concluded." Regarding the records responsive to request number 4, JCFD stated that the investigative report would be withheld under "KRS 61.878(1)(j)," and "KRS 61.878(1)(a) and (h)."
Regarding request numbers 5, 7, 8, and 9, JCFD acknowledged that Appellant had requested copies by mail, but stated that it would make the responsive records available for onsite inspection. As to request number 6, JCFD stated, "[t]his request is denied in accordance with KRS 61.872(6)." JCFD argued that it was not possible to determine the number of responsive records because, "[t]his request essentially asks for every document of any sort in the possession of the [JCFD] and, as such, places an unreasonable burden upon the District that would disrupt the essential functions of the District." On appeal, JCFD argued, "[w]ithout narrowing the scope of this inquiry to a topic or time period, the only response would be to produce each and every document maintained at the office[.]"
With regard to request number 10, JCFD denied Appellant's request for copies of personnel files pursuant to KRS 61.878(1)(a) because the files contained birthdates, social security numbers, and personal addresses. As to request number 11, JCFD stated that no such records exists. On appeal, JCFD stated that Chief Rupard conducted the search for responsive records with the assistance of the District's IT staff, and provided a description of the search.
On April 1, 2019, this office requested unredacted copies of all responsive records that JCFD withheld for in camera review pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030. 2 The office also asked that JCFD provide a brief description of the disciplinary complaints underlying request numberss 2, 3, and 4, and relay the status of the proceedings. JCFD responded to our requests by providing hard copies of responsive records, and a disc containing all responsive emails.
JCFD Violated KRS 61.876 by Failing to Adopt Rules and Regulations and Designate a Custodian of Records . We find that JCFD violated KRS 61.876 by failing to adopt rules and regulations conforming to the Open Records Act and failing to display those rules and regulations in a prominent location accessible to the public. JCDF also violated the Act by failing to designate an official records custodian.
JCFD responded to Appellant's requests by stating that it has no policy concerning open records requests other than the Kentucky Revised Statutes. KRS 61.876(1) 3 and KRS 61.876(2) 4 require public agencies to adopt rules and regulations conforming to the Open Records Act. OAG 78-340; 15-ORD-198; 16-ORD-217. The Attorney General has long recognized that KRS 61.876 ensures that each public agency "will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request." 94-ORD-12, p. 4. The statute also protects the public agency from excessive disruption of its essential functions and its records from damage and disorganization. 99-ORD-141, p. 8. Accordingly, JCFD violated KRS 61.876(1) and (2) by failing to adopt rules and regulations, and display such rules in a prominent location accessible to the public. See 11-ORD-029; 13-ORD-035.
JCFD stated that it has no administrative staff, which revealed that it has failed to designate an official custodian of records in violation of KRS 61.876(1)(b). KRS 61.870(5) defines "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" KRS 61.870(6) defines "custodian" as "the official custodian or any authorized person having personal custody and control of public records [.]" Further, KRS 61.880(1) requires that the agency's response to an open records request "shall be issued by the official custodian or under [his or her] authority[.]" Read together, these provisions mandate the appointment of an official custodian of records, whose function is to process all open records requests that the agency receives. 00-ORD-73; 06-ORD-141, n. 1. Accordingly, JCFD violated KRS 61.876(1)(b).
JCFD's Untimely Responses Violated KRS 61.880(1) and KRS 61.872(5) . The record shows that JCFD failed to respond to Appellant's request within three business day as required by KRS 61.880(1). Under KRS 61.880(1), a public agency shall notify the requester within three business days of receipt of the request as to whether or not it will comply with the request. An agency must also cite the applicable statutory exception(s) and explain in writing how the exception(s) applies to any withheld records. KRS 61.880(1); 18-ORD-188; 19-ORD-044. A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140.
JCFD stated that it does not have administrative staff, and it was necessary to forward the requests to legal counsel for a response. However, like any public agency, JCFD is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. See
Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011). JCFD further violated the Act improperly delaying Appellant's access to the responsive records. If a response requires more than the mandatory three business days, the public agency is required to specifically invoke KRS 61.872(5), 5 which is the only provision of the Act that authorizes postponing access to public records. See 01-ORD-140, p. 3. Absent from JCFD's eventual response is any reference to KRS 61.872(5), and the requisite detailed explanation of the cause for delay and specific date when the records would be made available. Accordingly, we find that JCFD violated KRS 61.880(1) and KRS 61.872(5).
JCFD Violated KRS 61.872(3) by Requiring Onsite Inspection of Responsive Records . In requiring Appellant to access records responsive to requests 5, 7, 8, and 9 by onsite inspection, despite his request for copies of the records by mail, JCFD violated KRS 61.872(3). 6 No evidence exists in the record that JCFD could not mail responsive records either by email or regular mail.
This case is similar to 01-ORD-75, where the Campbell County Fire District argued that it had no legal obligation to mail requester copies of records identified in his request until he conducted an on-site inspection of those records. The Attorney General analyzed KRS 61.872(3)(a) and (b), and decided that the Campbell Fire District "must honor a request for copies of precisely described public records that are readily available within the districts' offices if [requester] resides, or has his principal place of business, outside Campbell County, and if he pre-pays a reasonable copying charge[.]" 01-ORD-75, p. 6 (emphasis added). Therefore, "a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. [But] a requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely the records and they are readily available within the agency." Id. , at p. 4-5 (quoting 98-ORD-186, p. 3).
The record establishes that Appellant precisely described the records he sought in requests numbers 5, 7, 8, and 9, and that those records were readily available, as contemplated by KRS 61.872(3)(b). The record also shows that Appellant does not live and work in the same county where the public records are located. As such, the Act does not allow JCFD to require Appellant to inspect the records prior to receiving copies. See 01-ORD-75, p. 4-5. Accordingly, JCFD violated KRS 61.872(3) by requiring Appellant inspect records responsive to requests 5, 7, 8, and 9 onsite.
JCFD Violated KRS 61.878(4) by Issuing a Blanket Denial of Personnel Records . In request number 10, Appellant sought a copy of the personnel records of a number of JCFD employees. JCFD issued a blanket denial of the copies pursuant to KRS 61.878(1)(a). This office is precluded from disclosing the contents of the records provided for in camera review under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. However, that review showed that the some of the responsive records contain personal identifying information and healthcare information relating to the employees; but the record does not support JCFD's denial of the personnel records in their entirety. As such, we find that JCFD's blanket denial of access to the personnel files violated the Act.
The Act required JCFD to redact the exempt information and material from the responsive personnel records, and make the nonexempt material available for Appellant. See KRS 61.878(4). "Neither the courts nor this office have determined that the contents of a public employee's personnel file are entirely shielded from disclosure by operation of KRS 61.878(1)(a)." 08-ORD-178, p. 3. Rather, this office has determined that only those records, or portions of records, in a public employee's personnel file that are unrelated to the performance of his or her public duties can be properly withheld under KRS 61.878(1)(a). Id. ; 03-ORD-012 (Berea Independent School District improperly denied a request for the complete personnel records); 16-ORD-094 (City of Danville properly withheld information in police officers' personnel file, including personal phone number, home address, driver's license number; and date of birth); 05-ORD-239 (affirming agency's nondisclosure of healthcare information in personnel record). Accordingly, JCFD must provide Appellant access to the nonexempt material in the personnel files.
JCFD Properly Withheld Pending Complaints and Investigation Material as Preliminary . JCFD properly withheld two complaint files and the related memorandums, summaries, and investigation reports as preliminary, pursuant to KRS 61.878(1)(i) and (j). 7 Regarding any complaints still pending (of which JCFD states there are two), records that are part of that ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection until final action is taken or a decision to take no action. See 10-ORD-065; 05-ORD-005; 17-ORD-255. "[P]iecemeal disclosure along the path of the decision-making process is not mandatory."
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013).
In 18-ORD-194, we found that the Fern Creek Fire Protection District lawfully denied a request for copies of formal complaints and official statements of charges. A hearing was still pending before the District's board of trustees and therefore the investigation remained ongoing. Under KRS 75.130(1), a fire protection district may only take disciplinary action against a member or employee "after charges are preferred and a hearing conducted as provided in this section." Accordingly, we found that KRS 61.878(1)(i) and (j) authorized nondisclosure of the requested complaints and statements of charges because there had not yet been a final agency action. Following that decision, JCFD lawfully denied access to the pending complaints and related records therein.
JCFD argues that it may withhold the investigation report pursuant to KRS 61.878(1)(a). 8 However, the Kentucky Supreme Court long ago recognized that the public is entitled to inspect records confirming that a public agency "promptly, responsibly, and thoroughly" investigated complaints leveled against its employees."
Kentucky Bd. of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) (holding that complaints against public employee "present[] a matter of unique public interest");
Doe v. Conway, 357 S.W.3d 505, 508 (Ky. App. 2010) (recognizing that public employee investigative files are subject to disclosure "because of the importance of the public interest involved." The court allows the redaction of the private information of citizens, recognizing that "private citizens retain a more than de minimus interest in the confidentiality of the personally identifiable information collected from them by the state."
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85 (Ky. 2013). However, it rejects the practice of " blanket denials of ORA requests, i.e., the nondisclosure of an entire record or file on the grounds that some part of the record or file is exempt. .." Id. at 88. Therefore, a public agency may properly redact from a responsive record "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." 18-ORD-099. However, JCFD must make the nonexempt material available to the public, in accordance with KRS 61.878(4). 9
JCFD also argues that the investigation report is exempt from disclosure, pursuant to KRS 61.878(1)(h). 10 But records of law enforcement agencies are exempt only if the disclosure of the information would harm the agency by premature release of information to be used in a prospective law enforcement action. 02-ORD-68; 08-ORD-013. "To invoke the law enforcement exemption ? the agency must show (1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way."
City of Ft. Thomas v. Enquirer, 406 S.W.3d 842, 850 (Ky. 2013); 15-ORD-038. JCFD did not demonstrate any harm that would result from premature release of the complaint files and thus cannot properly rely on KRS 61.878(1)(h) for withholding the investigation report.
JCFD Properly Denied Records Responsive to Request 6 Pursuant to KRS 61.872(3)(b) . JCFD properly denied request 6 because it placed an unreasonable burden in producing records on the agency, per KRS 61.872(6). 11 The request is open-ended and does not describe responsive records to an identifiable, limited class. The standard of a precise description for records required by KRS 61.872(3)(b) is generally not met by such "open-ended any-and-all-records-that-relate type of request(s)." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. As such, we find that request 6 is more appropriately denied pursuant to KRS 61.872(3)(b).
Appellant sought copies by mail of, "All documents, e-mails, messages, or other communications made by any JCFD employee or volunteer and any member of the Board." Therefore, Appellant was required to provide a "precise description" of the records. See 17-ORD-193, p. 4. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). A requester satisfies the requirement if she describes in definite, specific, and unequivocal terms the records she wishes to access by mail. 97-ORD-46, p. 3; 03-ORD-067. Consistent with the foregoing, this office has criticized "open ended any-and-all-records" that relate to a particular subject type requests and "broad discovery" type requests. 96-ORD-101; 99-ORD-14; 04-ORD-193; 00-ORD-79; 08-ORD-058. Accordingly, JCFD properly denied the request pursuant to KRS 61.872(3)(b).
JCFD Cannot Provide Access to Nonexistent Records . With regard to Appellant's request number 11 for copies of text messages of JCFD employees, we find the record supports JCFD's denial of request number 11 due to the nonexistence of responsive records. JCFD denied that it had access to any such records and stated that the agency does not provide employees cellphones to produce such records. In support of the denial, JCFD on appeal described the search for records. We find that the record supports JCFD's denial.
The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. This office has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist").
No affirmative evidence exists in the record that JCFD possesses responsive records. The Act imposes the burden of proof in these appeals on the public agency per KRS 61.880(2)(c), and a public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing
Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). JCFD satisfied that burden by providing a description of its search for records and identifying the employees that conducted the search. In the absence of the requisite prima facie showing, or any facts or evidence to support Appellant's claim, this office must affirm the agency's denial of his request. See 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [[records]] were created or still exist"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). We find that JCFD did not violate the Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states: "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."
2 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
3 KRS 61.876(1) states that: "Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to: (a) The principal office of the public agency and its regular office hours; (b) The title and address of the official custodian of the public agency's records; (c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies; (d) The procedures to be followed in requesting public records.
4 KRS 61.876(2) provides: "Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public."
5 KRS 61.872(5) states: "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. "
6 KRS 61.872(3) provides: "A person may inspect the public records: (a) During the regular office hours of the public agency; or (b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing."
7 KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in cases of, respectively: "(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " [and] "(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
8 KRS 61.878(1)(a) excludes: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
9 KRS 61.878(4) states: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
10 KRS 61.878(1)(h) excludes, in pertinent part: "Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication[.]"
11 KRS 61.872(6) provides: "If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence."