Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the response of U. S. Corrections Corporation to John E. Reneer's open records request, dated August 23, 1996, to inspect:
The record(s) reflecting the title of each position which Michael Samberg and Jack Lewis have held and/or now hold with the U. S. Corrections Corporation, and the dates that Mr. Samberg and/or Mr. Lewis held each such position notwithstanding the location of each such position.
In his letter of appeal to this office, Mr. Reneer states that on September 26, 1996, after receiving no response to his August 23, 1996 request, he sent another letter to U. S. Corrections Corporation requesting a response to his open records request.
By letter dated October 3, 1996, R. Allen McCartney, Esq., responding on behalf of U. S. Corrections Corporation, acknowledged receipt of the August 23, 1996 letter and other requests. However, Mr. Reneer states that this letter was not responsive to the August 23, 1996 request which is the subject matter of this instant appeal.
On October 11, 1996, we sent the U. S. Corrections Corporation a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Mr. Reneer's letter of appeal. As authorized by KRS 61.880 (2) and 40 KAR 1:030, Section 2, Mr. McCartney provided this office with a response to the issues raised in the appeal. In this response, Mr. McCartney states, in part:
I am in receipt of Mr. Reneer's Open Records Request which you provided to me as a result of your notification. I have previously responded to Mr. Reneer indicating the names of the Board of Directors, as it presently exists. Apparently Mr. Reneer wishes to know the relationship of Mr. Lewis to U. S. Corrections Corporation. Mr. Lewis does not work for U. S. Corrections Corporation, nor has he ever worked for U. S. Corrections Corporation. Relative to Mr. Michael Samberg, he is not employed by U. S. Corrections Corporation on this date, or the date of inmate Reneer's inquiry.
On appeal, we are asked to determine if the actions of the U. S. Corrections Corporation in responding to Mr. Reneer's open records request were consistent with the Open Records Act. For the reasons which follow, we conclude that the action of the corporation were consistent in part and inconsistent in part with the act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. 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.
To the extent that U. S. Corrections Corporation failed to respond in writing within three business days to Mr. Reneer's requests, its actions were procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
As to the substantive issues, the portion of the response that Mr. Lewis does not nor has he ever worked for the corporation appears to be responsive to Mr. Reneer's request and consistent with the Open Records Act. If Mr. Lewis never worked for the corporation, there would be no records reflecting such employment. This office has long recognized that an agency cannot provide records which do not exist.
In response to the request relating to records relating to Mr. Samberg's employment with the corporation, the response indicates that Mr. Samberg was not employed with the corporation on the date of Mr. Reneer's open records request or on the date of Mr. McCartney's response to Mr. Reneer's letter of appeal provided to this office. This seems to indicate that he was employed by the corporation at one time. Thus, this response does not appear to be responsive to the request for records reflecting the title of each position and the dates Mr. Samberg has held such position with the corporation.
In further explanation, Mr. McCartney, in his response to this office, indicates that the additional information requested about Mr. Samberg is personal and confidential to him and is, therefore, exempt from disclosure.
This office has previously held that the U. S. Corrections Corporation, as a private provider, is subject to the Open Records Act. 96-ORD-184. In 94-ORD-27, this office stated:
Moreover, the private provider is publicly accountable. The records of the private provider are, in general, treated as public records within the meaning of KRS 61.870(2). KRS 197.510(7). That statute stops short, however, of mandating wholesale disclosure of private provider records. It expressly exempts financial records maintained by the private provider, presumably out of a recognition that the provider is a private entity which might be competitively disadvantaged by the release of these records.
KRS 197.510(7) provides that all documents and records, except financial records, maintained by the private provider shall be deemed public records as defined by KRS 61.870 and be subject to the provisions of KRS 61.872 to 61.884.
If the prior employment of Mr. Samberg relates to the administration of the public business of the corporation which the provider is undertaking, rather than to the private financial business of the corporation, the records would constitute public record and should be made available for Mr. Reneer's inspection.
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154.
Mr. McCartney's response in this regard was procedurally and substantively deficient in that it failed to cite a specific statutory exception authorizing the nondisclosure of a public record and briefly explain how the cited exceptions applied to specific documents withheld from inspection.
His response indicating the information is personal and confidential to Mr. Samberg implies the invasion of privacy exemption, KRS 61.878(1)(a). If material or information exists in the file which is exempt under provisions of the Open Records Act, the agency can redact that portion of the record and make the nonexempt portion available.
KRS 61.878(4) provides:
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.
However, as noted above, the burden of justifying the withholding of public records or portions thereof rests with the public agency.
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 proceeding.