Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Franklin County Regional Jail (Jail) violated the Open Records Act in the disposition of Jeffery Trent's request for a copy of records of reprimands relating to job related misconduct of jail employee and lawsuit settlements. For the reasons that follow, we find that the Jail's denial of Mr. Trent's request constituted both a procedural and substantive violation of the Act.
By letter dated July 23, 2007, Mr. Trent submitted a request to the Jail for copies of:
[t]he following record series relating to Jeffery/Jeffrey Trent and his arrests April 25, 2005 and April 26, 2005 - L2686 Inmate Account Deposit Receipt; L2687 Inmate Account; L2677 Inmate classification Sheet. Also, all records documenting cell assignments and any investigative reports concerning statements made by Jeffery/Jeffrey Trent pursuant to the above arrests.
On June 25, 2007, Mr. Trent submitted a second request to the Jail asking for records or information regarding Jail employee Richard Mazzacone relating to (1) his work station; (2) positions held; (3) salary history; (4) information about his ability to discharge the responsibilities of public employment; (5) reprimands relating to job related misconduct; (6) documents related to lawsuit settlements; (7) letters of resignation; and (8) records reflecting improper use of public equipment.
In response to the June 25, 2007, request the Jail provided Mr. Trent information or records relating to numbered requests (1) - (3). With respect to numbered requests (4) and (8), the Jail advised that those requests were "vague and unanswerable. " As to numbered request (7), the Jail advised that there were no letters of resignation. The jail denied numbered request (5) for reprimands on the basis of "This is not subject to open records," and numbered request (6) for documents relating to lawsuit settlements on the basis of "Attorney work product - Not subject to open records."
Shortly thereafter, Mr. Trent initiated the instant appeal, acknowledging that the Jail had provided him with certain records responsive to his request, but missing were "records contained in records series L2687 - Inmate Account." He stated that those records should have been included for the time span of his incarceration which followed his arrest April 26, 2005, "extending through June 23, 2006." Additionally, he challenged the Jail's denial of his request for the employee's reprimands.
After receipt of notification of the appeal, Lt. Rachel O. Hensley, Custodian of Records for the Jail, provided this office with a response to the issues raised in the appeal. In her response, Lt. Hensley advised:
In reference to inmate account records requested by Mr. Trent on July 23, 2007, he asked for records for April 25, 2005 and April 26, 2005. Those are the records we provided and mailed to him. In his letter of appeal he has changed those dates to April 26, 2005 through June 23, 2006. We will provide records for those dates even though Mr. Trent has not filed an open records request for those particular dates.
In reference to his request for records of reprimands for Sgt. Richard Mazzacone, we have been advised by the Franklin County Attorney, Rick Sparks, that those records are not subject to open records.
To begin, we find that the jail failed to comply with KRS 61.880(1) in responding to and denying Mr. Trent's request for a copy of the reprimands and lawsuit settlements. KRS 61.880(1) establishes 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.
KRS 61.880(1) requires public agencies electing to withhold all or any portion of a public record to "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. " In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). The Jail denied numbered request (5) for reprimands on the basis of "This is not subject to open records," and numbered request (6) for documents relating to lawsuit settlements on the basis of "Attorney work product - Not subject to open records." These responses provided neither a statement of the specific exception authorizing the withholding of these documents nor a brief explanation of how the exception applies to the record withheld, must less provide "particular and detailed information in response to [the] request." Thus, the Jail's responses to these requests were both procedurally and substantively deficient in meeting the requirements of KRS 61.880(1) and constituted a violation of the Open Records Act. If a statutory basis exists for withholding access to these records, the agency should promptly advise Mr. Trent and must articulate the basis in terms of the requirements of KRS 61.880(1). If no statutory basis exists, the records should be made available to Mr. Trent.
We next address issues raised in other portions of the Jail's responses. The Jail provided Mr. Trent with the information or records relating to his numbered requests (1) - (3). 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Trent has been provided records responsive to this portion of his request, the issue as to access to these records is moot and no decision will be rendered in this regard.
In response to numbered request (7), the Jail advised Mr. Trent that there were no letters of resignation. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Thus, we find no violation in this regard.
With respect to numbered request (4) for information about his ability to discharge the responsibilities of public employment and (8) for records reflecting improper use of public equipment, the Jail advised that those requests were "vague and unanswerable. " Although these requests are somewhat vague and imprecise, this office has previously held that records relating to a public employee's qualifications to do his job and records relating to use of public equipment are subject to disclosure. 04-ORD-141; 04-ORD-065. Mr. Trent may want to resubmit his request and describe with more precision the records that he seeks to enable the agency to identify and locate those records, if they exist. We do note that in its responses to Mr. Trent's numbered requests (1) and (2), the Jail did provide information related to the employee's prior duty station experience and positions held.
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.