Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented here is whether the Pulaski County Detention Center violated the Open Records Act in denying Aaron Rivers's request for "a full color copy (printout) of Shawn Mullins' arrest photo." We find the Center violated KRS 61.880(1) in failing to respond to Mr. Rivers's initial request, and its response to the letter of appeal failed to set forth a sufficient basis to support withholding access to the requested record. For the reasons that follow, and based on the authorities cited, we remand the appeal back to the Center with directions that it issue a new response to Mr. Rivers's request within three business days after receipt of the remand.
In his letter of appeal, dated September 2, 2002, Mr. Rivers stated that he hand delivered his request on August 24, 2002 and, as of the date of the letter of appeal, he had not received a written response to his request.
After receipt of Notification of the appeal and a copy of the letter of appeal, Dan Thompson, Assistant County Attorney, on behalf of the Center, provided this office with a response to the issues raised in the appeal. In his response, Mr. Thompson advised:
P.C.D.C. [Pulaski County Detention Center] was unable to provide Aaron Rivers with any response or written answer because he was transferred to another facility before an answer could be provided.
P.C.D.C. denies the request for production of the information under KRS 61.872(6) because Aaron Rivers is using this request and information as a means to slow criminal procedures in the Commonwealth of Kentucky as well as Virginia. Rivers is attempting to use civil remedies to gain transport from jail to jail. (Attached 1).
P.C.D.C. denies the request under KRS 61.878(1)(l) as a public record or information prohibited and made confidential by enactment of the General Assembly. Specifically, KRS 197.025(1) restricts release of information regarding inmates in it poses a threat to their safety.
The Center's failure to respond in writing to Mr. Rivers's initial request in a proper and timely fashion constituted 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 Center, in its September 11, 2002 response to the Notification of appeal, indicated that it was unable to respond to the initial request, hand-delivered on August 24, 2002, because Mr. Rivers was transferred to another facility before a written response could be provided. Mr. Rivers's letter of appeal indicates he was transferred on August 28, 2002. The agency's substantive response on September 11, 2002 was outside the required response time of three business days provided by KRS 61.880(1). Although some delay in providing a timely response may have been mitigated by Mr. Rivers's transfer, we conclude the failure of the agency to respond to his request until September, 11, 2002, constituted a procedural violation of KRS 61.880(1).
Addressing the substantive issues, we conclude that the Center failed to set forth a sufficient basis to support withholding access to the requested record either under KRS 61.872(6) or KRS 197.025(1), in tandem with KRS 61.878(1)(l).
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.
If an agency invokes KRS 61.872(6) as a basis for the nondisclosure of requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it. This burden is not sustained by the bare allegation that the request is unreasonably burdensome. In its response, the Center argues that Mr. Rivers is using the open records request to slow criminal procedures in Kentucky and Virginia and attempting to use civil remedies to gain transport from jail to jail.
In an early opinion, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 82-233, p. 3. As Kentucky's courts have recognized, analysis of the propriety of an agency's denial of an open records request "does not turn on the purposes for which the request for information is made or the identity of the person making the request."
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994). Thus, regardless of Mr. Rivers's motives for requesting the record, the Center does not establish with clear and convincing evidence that the instant open records request places an unreasonable burden on the Center in producing a copy of the requested photo or that Mr. Rivers has made repeated requests intended to disrupt other essential functions of the Center. Accordingly, we conclude that the agency improperly withheld access to the record under KRS 61.872(6).
KRS 61.878(1)(l) provides for the nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
KRS 197.025 is broad in scope and vests the Center with a great deal of discretion in the release of records maintained at its facilities. However, this exercise of discretion is not unfettered. 96-ORD-179. There must be some brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff or inmates. 96-ORD-182.
In the instant case, the Center has failed to provide a brief explanation as to how release of the requested record, "Shawn Mullins' arrest photo," would constitute a threat to the institution or institutional staff or inmates. Accordingly, we remand the appeal back to the Center with directions that it issue a new response to Mr. Rivers's request within three business days after receipt of this remand. If the Center denies his request under KRS 197.025(1), in tandem with KRS 61.878(1)(l), it must briefly explain how release of the requested record would constitute a threat to the institution or institutional staff or inmates. If the Center fails to respond or again fails to make the requisite showing relative to its denial, Mr. Rivers can initiate a new appeal with this office. If no legally defensible basis exists for denying Mr. Rivers access to the requested record, it is obligated to make it available to him.
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.
Aaron Rivers, # 283728P.O. Box 970Pound, VA 24279
Darryl Presley, JailerPulaski County Detention Center300 Hall Knob RoadSomerset, KY 42501
Fred NeikirkPulaski County Attorney104 West Columbia P.O. Box 5Somerset, KY 42502