Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy (DPA) violated the Open Records Act by not responding to an inmate's request, or providing records relating to an adoption/parental rights case. We find no violation of the Act.
Thomas Holder, an inmate in the Kentucky State Penitentiary, requested his entire file in case number 15-AD-00017, an adoption/parental rights case in which he is represented by attorney Blaze Tomlin. Mr. Holder directed his request, dated July 26, 2016, to "Department of Public Advocacy, Att: Blaze Tomlin." When he received no response from Mr. Tomlin, Mr. Holder appealed that lack of response on August 8, 2016.
In a response to the appeal dated August 18, 2016, B. Scott West, General Counsel, DPA, explained that DPA does not have, and never had, the case file referenced by Mr. Holder. The number of the case, 15-AD-00017, "indicates that this is an adoption/parental rights case. DPA does not get appointed to those as they are not criminal cases. DPA confirmed with the Trial Office that we had nothing to do with the representation of Mr. Holder in this case." Mr. West went on to explain that Blaze Tomlin is a private practitioner who, from time to time, handles criminal cases where the DPA has a conflict and outside counsel is necessary. "In those cases, the conflicted defendant's records are not DPA records, as DPA does not -- by definition of it being a conflict case -- maintain or possess a copy of the file. However, this matter was not conflicted out, as, again, DPA does not get appointed to 'AD' cases."
"Public record" is defined by KRS 61.870(2) as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency . (Emphasis added)." While DPA is unquestionably a "public agency" under KRS 61.870(1) , it did not prepare, own, use, possess or retain the records requested by Mr. Holder, and so the requested records are not "public records" of the DPA.
To satisfy its burden of proof under KRS 61.880(2)(c), however, a public agency must explain why it cannot produce the records being sought. 11-ORD-104, p. 5. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"). In this instance, it does not appear that DPA even received the initial request as the only address appearing in the appeal is that of Mr. Tomlin, who is not a "public agency" as defined by KRS 61.870(1). If it had received the original request, DPA would then have at least been required to respond to Mr. Holder pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Since there is no evidence in the record of this appeal that DPA received the initial request, there is no violation of the Act's requirements to explain why DPA could not produce the records sought or why DPA did not notify Mr. Holder of the name and location of the official custodian of the agency's public records.
As DPA does not have, nor ever has had, the requested records, and there is no evidence of record that DPA received Mr. Holder's request, there is no 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.