Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the inaction of the McCracken County Jail relative to Ricky Fulcher's September 13, 2009, request for various records, including "any and all documents submitted or sign[ed] by Officer Ryan Conn," that were generated in connection with Mr. Fulcher being housed at the Jail on April 12, 2009. Having received no response to his request, Mr. Fulcher initiated this appeal by letter dated September 28, 2009. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both McCracken County Attorney Dan Y. Boaz and Jailer Bill Adams on October 2, 2009, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," this office has not received a response as of this date nor has the Attorney General been advised that the Jail has taken any kind of action relative to Mr. Fulcher' request. In our view, 05-ORD-190 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. 1
As a public agency, the Jail must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which 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 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) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond, as the Jail did here, constitutes a violation of the Act.
Here, the Jail had two opportunities to discharge its duty under KRS 61.880(1); first, upon receiving Mr. Fulcher's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the Jail has not issued a written response to Mr. Fulcher's request, and this constitutes a clear violation of KRS 61.880(1). Public agencies such as the Jail are not permitted to elect a course of inaction. As the Attorney General has consistently recognized, 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." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Because the Jail did not respond to Mr. Fulcher's request, the Jail 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. . . ." 2 That being the case, the Jail must provide Mr. Fulcher with copies of any existing records in its custody which are responsive to Mr. Fulcher's request unless the Jail can meet its burden of proof by articulating, in writing, a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the Jail's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 3 If the Jail "does not have custody or control" of any records identified in Mr. Fulcher's request, the Jail "shall notify [Mr. Fulcher] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the Jail performs these functions, it 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 party in that action or in any subsequent proceeding.
Ricky Fulcher, # 162001Bill AdamsDan Y. BoazMichael Murphy
Footnotes
Footnotes
1 Although Mr. Fulcher asked the Attorney General to "please investigate this matter," the function of this office under the Open Records Act is narrowly defined at KRS 61.880(2)(a), pursuant to which the Attorney General "shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." Accordingly, this office is not empowered to gather evidence, interview witnesses, conduct hearings or "investigate" disputes arising under the Open Records Act.
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2 A public agency such as the Jail must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232.
3 If no records exist which areresponsive to Mr. Fulcher's request, the Jail must affirmatively indicate as much to Mr. Fulcher in writing immediately. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Jail must ascertain whether records exist which are responsive to Mr. Fulcher's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.
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