Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Charon Anderson appeals the alleged failure of the Department of Corrections to respond to multiple open records requests she claims she sent to the Department of Corrections. We summarize those requests:
. Request dated December 18, 2014, with a "Certificate of Service" at the bottom of the page bearing the date "Dec. 21, 2014," for a copy of her "psychiatric evaluation that was done at K.C.I.W. and any and all psychiatric documents held by K.C.I.W.";
. Request dated December 23, 2014, bearing the date January 5, 2015, and a "Certificate of Service" at the bottom of the page indicating that it was "mailed out Dec. 29, 2014," for copies of disciplinary reports "dated around 07-08-13, 09-12-13, 11-27-13, and 02-05-14";
. Request dated December 24, 2014, with a "Certificate of Service" at the bottom of the page indicating that it was "mailed by first class postage on the 29 Day of December, 2014" for copies of "any and all public records to dispute the accusations" that ". . . etc. is in violation of KRS 439.551 which state . . . etc." "and/or . . . etc. technical violations . . . I was served out instead of given a graduated sanction [sic]."
Ms. Anderson's open records appeal from the Department of Corrections' alleged inaction is dated December 31, 2014, but was received in this office on January 7, 2015.
In correspondence directed to this office after Ms. Anderson initiated her appeal, the Department of Corrections denied receipt of each of these requests and attached an affidavit in support. In it, Administrative Specialist III Brandi Hawkins averred that her duties "include handling of open records requests by date-stamping open records requests when received, logging the requests, and responding to the requests," and that she "reviewed the open records request log, the section of KOMS for Charon Anderson # 177122 where open records are stored, and checked with supervisors in the Offender Information Office, and none of the three requests attached to the appeal have been able to be located." Ms. Hawkins expressed the belief that the requests were never "received by the Department of Corrections at its Central Offices in Frankfort."
KRS 61.880(1) establishes the requirements for agency response to an open records request. That statute provides:
If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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 Act, the Kentucky Supreme Court has recognized that this duty is conditioned on the submission of "a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure."
Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). A public agency cannot be expected to respond to a request that has not been submitted to it or that has been submitted but not yet arrived. Whether through dereliction or design, many of Ms. Anderson's requests have not reached their intended recipients. See, e.g., 14-ORD-213 (no violation of Open Records Act found where request appeared never to have been received by Lexington-Fayette Urban County Government); see also 14-ORD-203. Other requests have arrived at the agency on the same day Ms. Anderson initiated her open record appeal. See 14-ORD-215. Still other requests arrived at the agency and a response was promptly issued, but Ms. Anderson failed to include a copy of the response in her appeal. See 14-ORD-075 (citing KRS 61.880(2)(a) and 40 KAR 1:030 § 1, Attorney General declines jurisdiction). In these and others of the twenty-seven open records appeals Ms. Anderson has submitted in a period of less than one year, she has not complied with the legal requirements for submission of an open records request and appeal.
In 96-ORD-193, this office recognized that "[a]lthough there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6)." 2
This position, we later observed, is premised on the well-established position that "[s]tate agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time." 96-ORD-209, p. 3, citing OAG 76-375, p. 4. Here, as in 96-ORD-193, we recognize that "[i]f past experience is any indication, [these twenty-seven] open records appeals represent the proverbial tip of the iceberg relative to the total number of open records requests [Ms. Anderson has] submitted." 96-ORD-193, p. 5. We urge her to carefully review the legal requirements for submission of open records requests and appeals, to exercise prudence and discretion in pursuing open records requests and appeals, and to bear in mind the limits of the Attorney General's role in adjudicating open records disputes.
Despite the fact that the Department of Corrections did not receive any of the requests which form the basis of this appeal, the Department properly responded to each in correspondence directed to this office, and copied to Ms. Anderson, after she submitted her appeal. The Department correctly advised that:
. Ms. Anderson's December 18 request was misdirected to the Department since she herself stated that the records she requested were records "done at K.C.I.W. and . . . held by K.C.I.W.";
. Ms. Anderson's December 23 request for specified "disciplinary reports" would be honored upon submission of prepayment for copies and postage as delineated; and
. Ms. Anderson's December 24 request did not contain a description of records "that can be located with reasonable effort" 3 and she must therefore clarify what records she is seeking.
We find no error in the Department of Corrections' disposition of these requests.
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 96-ORD-193, p.5.
2 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
3 Commonwealth v. Chestnut, 250 S.W.3d 655, n. 13 (Ky. 2008).