Request By:
James Harrison, # 095435
Vada Wilson
Corbett Dunaway
Thomas K. Hollon
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Three Forks Regional Jail violated the Kentucky Open Records Act in failing to respond upon receipt of James Nick Harrison's request for documentation concerning his son, Jeffrey Dale Harrison, who is currently an inmate housed at the Jail. More specifically, Mr. Harrison requested the documentation which reflects the reason his son "was placed in the hole during the last week of February 2008," documentation "showing the capacity of the cells, pods or other areas where inmates are housed, " any "logs, policies or regulation[s] showing the hygiene items an inmate can receive each week and those "allowing staff to smoke within the state building," and "the agreement or documentation with the Estill County Jail [e]r to house and/or having [sic] my son transferred from that jail to the jail there in Lee County." Having received no response to his request directed to Vada Wilson, Administrator, on March 5, 2008, or his subsequent letter dated March 15, 2008, Mr. Harrison subsequently initiated this appeal. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Vada Wilson, Jailer Corbett Dunaway, and Lee County Attorney Thomas K. Hollon, advising that pursuant to 40 KAR 1:030, Section 2, "the agency may respond to this appeal," this office has not received a response on behalf of the Jail as of this date; accordingly, the Jail has failed to satisfy its burden of proof under KRS 61.880(2)(c).
As a public agency, the Jail is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 1 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208. By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act underscored by the mandatory response time of KRS 61.880(1). Although the burden on the agency to respond within three working days is not infrequently an onerous one, 2 the only exception to this general rule is codified at KRS 61.872(5), which the Jail did not invoke. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7.
A public agency is required to cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
As of this date, the Jail has failed to provide any written response to Mr. Harrison's request; accordingly, the Jail has failed to satisfy its burden of proof. Public agencies may not elect a course of inaction. To avoid future violations, the Jail should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
That being said, the Jail is not required to honor a request for any record from any inmate "unless the request is for a record which contains a specific reference to that individual." KRS 197.025(2). With regard to application of this provision, the analysis contained in 04-ORD-076 and 03-ORD-073 is controlling; a copy of each decision is attached hereto and incorporated by reference. As consistently recognized by the Attorney General, KRS 197.025(2) expressly authorizes correctional facilities like the Jail to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the records at issue do not contain a specific reference to Mr. Harrison, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship that application of KRS 197.025(2) may impose on Mr. Harrison, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, the Jail's implicit denial of his request is affirmed. 99-ORD-161, p. 2.
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 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
2 Pursuant to KRS 197.025(7):
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
Because this provision applies to the Department of Corrections and facilities under its jurisdiction, the Jail had five business days in which to issue a written response, but failed to comply within this period as well.