Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Thomas Stillwell asked the Attorney General to review his "Request for An Open Grievance of Confidentiality" by letter dated December 16, 2014, citing "Numerous Infractions on the Rules and Regulations" by the Hopkins County Jail and referencing, among other statutes, KRS 197.025(3), pursuant to which "all with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court." Mr. Stillwell enclosed a copy of a "Hopkins County Jail Requisition Form" dated November 28, 2014, as well as two separate forms dated November 18, 2014, each identified as "Hopkins County Jail Grievance." A representative of the Jail responded in the "Staff Use Only" section of the Requisition Form on December 2, 2014, and the Grievance Hearing Officer provided remarks to issues raised in each Grievance on November 24, 2014, and December 1, 2014, respectively. 1
Upon receiving notification of Mr. Stillwell's attempted Open Records Appeal, Captain Mike Lewis responded on behalf of the Jail. Captain Lewis correctly observed that "Mr. Stillwell has made no claim of any open records request being denied in part or in full." He further advised that a review of Jail records confirmed that "Mr. Stillwell had not previously submitted any requests under the Open Records Act. Stillwell had not previously submitted any requests under the Open Records Act. In relevant part, KRS 61.872(2) provides that, "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. " As the Attorney General has long recognized, 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. OAG 76-588; 06-ORD-197.
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 avoid their statutory duties, merely because a requester does not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3. Here, Mr. Stillwell did not submit any written requests that complied with KRS 61.872(2); rather, a review of his appeal, including the attachments, confirmed the Jail's position that Mr. Stillwell did not satisfy the minimal requirements of this provision as required to proceed under the Open Records Act nor, consequently, was the Jail required to comply with KRS 61.880(1).
In his December 16, 2014 letter, Mr. Stillwell raised a variety of concerns and complaints regarding the Jail, none of which fall within our narrow scope of review under KRS 61.880(2)(a), pursuant to which:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. 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.
The written request (s) and the agency's written response (s), if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency in this context. Accordingly, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to ? KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
The Jail did not require Mr. Stillwell to complete a particular form nor did it reject any requests due to a lack of specific terminology. The rules of procedure cannot be relaxed to such an extent as 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 appeal." 93-ORD-125, p. 5. See 00-OMD-156. Because Mr. Stillwell did not satisfy his obligations under KRS 61.872(2), the Jail had no statutory obligation to comply with KRS 61.880(1) nor was Mr. Stillwell able to comply with KRS 197.025(3) by submitting the "appropriate documents" per KRS 61.880(2). The broader concerns and issues raised are not justiciable in this forum as the Attorney General "is not empowered to resolve? non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Assuming for the sake of argument that Mr. Stillwell's November 18, 2014 Grievance concerning the failure of the Jail to provide him with access to a Department of Corrections Handbook minimally satisfied the requirements of KRS 61.872(2), the fact remains that a response was provided on November 24, 2014. Thus, Mr. Stillwell's purported appeal is untimely relative to said Grievance under KRS 197.025(3) and this office would be precluded from considering the merits on that basis.
2 More specifically, 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?
KRS 197.025(7) provides:
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.
(Emphasis added)