Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in failing to respond upon receipt of Steven Staub's request for a copy of the "adjustment hearing tape" from July 5, 2006. Although EKCC apparently complied with KRS 197.025(7), incorporated into the Open Record Act by operation of KRS 61.878(1)(l) , in responding to Mr. Staub's later request for a copy of the Inmates' Visitors List within five working days, EKCC has apparently not responded to his initial request or his attempt to resubmit same. Unless EKCC can advance a statutory basis for denial, as required to satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), EKCC must provide Mr. Staub with a copy of the requested audiotape upon receiving advance payment of the copying fee.
By letter dated August 24, 2006, Mr. Staub initiated this appeal; attached to his letter is a copy of an "Inmate Grievance Form" signed by Mr. Staub and dated August 15, 2006 which, in relevant part, reads as follows:
ACTION REQUESTED
I would like to receive a copy of my adjustment hearing tape 3205 Side A begin 287 end 476 [sic] dated 7-5-06 and reason for the [time] delay.
According to his "BRIEF STATEMENT OF THE PROBLEM," Mr. Staub had submitted a request some "12 working days ago" for a copy of his "adjustment hearing tape" to which the Records Department had not responded. In a memorandum dated August 16, 2006, Pam Nickell, Grievance Coordinator, advised Mr. Staub that "Open Records are non-grievable" according to CPP 14.6 II, C.8. On August 18, 2006, Mr. Staub submitted another grievance outlining this sequence of events, in which he requested that EKCC "go by their policies and procedures" relative to responding within the designated time frame. Reiterating her previous response, Ms. Nickell issued a memorandum on August 18, 2006, further advising Mr. Staub that she "checked further into this matter and discovered that Inmate Records received [his] open records request on August 11th and that office was sending [him] the requested documents today, August 18th. This is within the five (5) day time limit per policy. Therefore, there is no violation of policy." 1 While EKCC is correct in this assertion, Mr. Staub clarifies on appeal that Ms. Nickell is referring to a request for a copy of the Inmates' Visitors List, which he submitted one week after his initial request.
Upon receiving notification of Mr. Staub's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of EKCC. Noting that Mr. Staub included a copy of grievance # R06-199, Ms. Dennis contends that nowhere "in any of the documentation sent by Mr. Staub to [this] office is a copy of [a] single written request about which he complains he has been denied access to records or to which the EKCC has failed to respond." Citing KRS 61.880(2)(a), pursuant to which "the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection [,]" Ms. Dennis correctly argues that "a copy of a 'written request' is an essential element of an open records appeal to the Office of the Attorney General." In her view, Mr. Staub's appeal should be dismissed "for failure to comply with KRS 61.88(2)(a)." Because Mr. Staub substantially complied with KRS 61.872(2) in submitting his initial grievance form ("Action Requested" portion), a copy of which is of record, this office must respectfully disagree.
In relevant part, KRS 61.872 provides:
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
As long recognized by this office, the "rules of procedure governing" appeals filed under the Open Records Act "should be relaxed to permit the greatest possible access to this forum," and a "rule of substantial compliance should generally be applied." 93-ORD-11, pp. 2-3; Compare 94-ORD-34. In addressing the sufficiency of a request, the Attorney General has consistently held that even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. 06-ORD-112; 01-ORD-247; 01-ORD-173; 94-ORD-101; OAG 76-588. Receipt of such a request triggers application of the statutory requirements codified at KRS 61.880(1), 2 pursuant to which public agencies must respond in a timely and proper fashion. Public agencies cannot reject a request, or otherwise avoid statutory duties, merely because the requester did not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3.
Although Mr. Staub did not include a copy of his original written request when filing this appeal, his grievance form dated August 15, 2006 (#R06-109), substantially complied with KRS 61.872(2) insofar as it was in writing, described the records to be inspected, and contained both his signature and his name printed legibly; 3 Mr. Staub therefore satisfied the minimum requirements of KRS 61.880(2)(a) by attaching same to his appeal. To hold otherwise would elevate form over substance.
As recognized by the Attorney General:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
94-ORD-101, p. 3. On appeal, EKCC does not deny receiving Mr. Staub's request for a copy of his adjustment hearing tape, nor does EKCC allege that his original request did not comply with KRS 61.872(2). That being the case, EKCC was obligated to issue a written response including 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. " KRS 61.880(1). "The duty to properly respond does not place an undue burden upon public servants," as observed by the Kentucky Court of Appeals, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." Sykes v. Kemper, Ky. App., 2000-CA-000714-MR (3/30/01) at p. 4, petition for rehearing denied July 20, 2001 (unpublished opinion holding that failure to issue a proper response upon receipt of an Open Records request was not excused by requester's failure to identify the request as being made under KRS 61.870 et seq.). 4 See 01-ORD-168.
Because EKCC did not respond to Mr. Staub's original request upon receipt, EKCC necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency, . . ." That being the case, EKCC must provide Mr. Staub with a copy of any existing record in its custody which is responsive to his request unless EKCC can belatedly satisfy its burden of proof by articulating a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a)-(n). In accordance with KRS 61.874(1), EKCC may require "advance payment of the prescribed fee." If EKCC "does not have custody or control" of the record identified in Mr. Staub's request, EKCC "shall notify [Mr. Staub] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until EKCC performs these functions, EKCC stands in violation of the Open Records 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 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.
Footnotes
Footnotes
1 A copy of the referenced grievance forms and memorandums is attached to Mr. Staub's letter of appeal.
2 More specifically, KRS 61.880(1) provides, in relevant part, as follows:
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.
KRS 197.025(7) provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
See 05-ORD-080.
3 See 01-ORD-173 ("It is the opinion of this office that regardless of whether [the request] was 'a separate request for Open Records,' or 'included in correspondence asking for follow up information regarding a grievance, ' the Board of Medical Licensure was obligated to respond . . .').
4 Although Sykes v. Kemper is an unpublished opinion which cannot be cited or used as authority in any other case in any court of this state per Kentucky Rules of Civil Procedure (CR) 76.28(4)(c), it presumably reflects the view which courts might later adopt in a published opinion relative to duties of public agencies upon receipt of a request not clearly identified as such.