Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville-Jefferson County Public Defender Corporation violated the Open Records Act in the disposition of Ja-Ron S. Teague's undated request for:
(1) One stamped certified or notarized copy of their policies on (a) atty:client privileged information; (b) time spent to prepare client case, including jail visits; (c) professional code(s) of ethics, including racial discrimination/prejudice; (d) effective/ineffective representation; (e) conflict of interest; [and] (f) lawyer misconduct against clients[.]
For the reasons that follow, we find that the Louisville Metro Public Defender cannot be said to have violated the Open Records Act in failing to respond to Mr. Teague's request, if, in fact, it never received that request. However, we find that its ultimate denial of Mr. Teague's request based on its professed inability "to understand what he is seeking in terms of records" is legally unsupportable.
By letter dated December 11, 2007, Deputy Chief Public Defender Leo G. Smith notified this office that "no one in the office [of the Louisville Metro Public Defender] had ever seen" Mr. Teague's request. Continuing, Mr. Smith observed:
[A]fter reviewing Mr. Teague's nonsensical "motion-petition," we are at a loss to understand what he is seeking in terms of records. Our only response to what we perceive this inquiry to be seeking is that every attorney in this office is required to fully comply with the Kentucky Rules of Professional Conduct (KRPC) as set forth in SCR 3.130, and with the provisions of KRE 503 (Lawyer-Client Privilege).
On this basis, the Louisville Metro Public Defender urged this office to "summarily dismiss" Mr. Teague's appeal, "just as similarly frivolous complaints filed with other agencies have been uniformly rejected." Respectfully, it is not within our prerogative to dismiss Mr. Teague's appeal, nor do we believe that the issues raised are frivolous.
We begin by noting that the Attorney General is not equipped to resolve a factual dispute concerning the actual delivery and receipt of Mr. Teague's undated open records request. Although he maintains that the request was mailed to the Louisville Metro Public Defender, Mr. Teague offers no proof of receipt, such as a return receipt following delivery of a certified letter. 1 Mr. Smith, on the other hand, asserts that the request did not reach the Louisville Metro Public Defender and that "no one in the office" ever saw it. If Mr. Teague's request did not reach the Louisville Metro Public Defender, for whatever reason, that agency should not be faulted for its failure to respond. KRS 61.880(1); 02-ORD-109.
Having obtained a copy of Mr. Teague's request as an attachment to this office's notification of receipt of his appeal, the Louisville Metro Public Defender elected to deny that request on the basis that it was unable to discern "what he is seeking in terms of records." While we agree that Mr. Teague's request is not a model of clarity, the courts and this office have established a minimal standard relative to the sufficiency of an open records request. With respect to the degree of precision required in framing an open records request, this office has observed:
An open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island 1978). Instead, the requester should submit a "brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See, e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6; 01-ORD-51; 06-ORD-028. In an unpublished opinion, the Kentucky Court of Appeals has gone one step further and declared that a records description is adequate if it enables the agency's custodian to "identify what documents the applicant[] wish[es] to see . . . ." Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005). 2
We find that Mr. Teague's request satisfies this standard. He wishes to obtain a copy of any written policies governing the conduct of attorneys employed by the Louisville Metro Public Defender and identifies six particular areas of concern. While it is entirely possible that the Louisville Metro Public Defender maintains no such written policies, being guided instead by Kentucky Rules of Professional Conduct and KRE 503, it is incumbent on the Louisville Metro Public Defender to so state. An implication that the requested records do not exist is not sufficient under the Act. See, e.g., 01-ORD-38; 02-ORD-14; 04-ORD-205; 07-ORD-112 ("An agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms"). A written response that does not clearly so state is deficient.
If, on the other hand, the Louisville Metro Public Defender does maintain written policies governing the conduct of the attorneys it employs, it should be guided by the holding in 95-ORD-121 and 97-ORD-129, relating to the application of KRS 61.872(6) to disclosure of agency policies, in responding to Mr. Teague's request. Copies of the referenced open records decisions are attached hereto and incorporated by reference. If the Louisville Metro Public Defender maintains written policies governing the conduct of its attorneys, if any of the written policies are responsive to Mr. Teague's particular request, and if the disclosure of those written policies would not "compromise a significant governmental interest [or otherwise necessitate] an immediate revision of policy or practice so as to avoid the subversive use of [the policies], or information contained therein," 95-ORD-121, p. 8, those written policies must be disclosed to Mr. Teague.
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 The Open Records Act does not require a requester to submit his request by certified mail, return receipt requested. Regular mail delivery is sufficient under the Act. KRS 61.872(2). A return receipt for certified mail would, however, provide proof of actual delivery of the request.
2 Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-000086) and oral argument is scheduled for February 14, 2008.