Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Public Advocacy (DPA) violated the Kentucky Open Records Act in not responding to requests for records allegedly sent to several DPA attorneys. For the reasons that follow, this office is unable to determine that DPA violated the Open Records Act in response to the initial requests, but we find that DPA committed procedural violations in responding to the requests after the appeal was filed.
By letter dated August 16, 2016, Kurt Lowe, an inmate at Green River Correctional Complex, sent letters to three attorneys of the Department of Public Advocacy (DPA) requesting his "entire case file" 1 for two criminal cases. The letters were addressed to Justin Hoskins, Richmond; Edward Monahan, 2 Frankfort; and Eva Hagar, Directing Attorney, Newport Field Office. Ms. Hagar responded to Mr. Lowe by letter dated August 23, 2016, in which she stated that her office did not have custody or control of the requested records and that "requests for files made under the Kentucky Open Records Act must be directed to our Frankfort Office, to the attention of our official custodian of agency public records: B. Scott West, General Counsel, DPA, ATTN: Official Custodian of Records, 200 Fair Oaks Lane, Ste. 500, Frankfort, KY 40601."
Mr. Lowe filed an appeal by letter dated October 9, 2016, in which he claimed that he had received no response from Mr. Monahan or Mr. Hoskins. Mr. Lowe claimed that Ms. Hagar was in violation of the Act because she had not provided a justification for not producing the records and because she had not forwarded his request on to Mr. West. Mr. Lowe further stated that he had not received a response from Mr. West.
On October 27, 2016, B. Scott West, General Counsel, DPA, responded to the substantive charges from Mr. Lowe. Mr. West explained that James Lamb, DPA, is the "person who retrieves and copies/has copied files responsive to KORA requests. According to Mr. Lamb, prior to getting Mr. Lowe's appeal (and the attached Exhibit P purportedly sent to the undersigned) , Mr. Lamb was unaware of any request. Typically, any request will come to the undersigned or Mr. Lamb. In this case, neither of us received the request." An email from Mr. Lamb to that effect was attached to Mr. West's response. In that email, Mr. Lamb stated that "Mr. Lowe's client record consist of four boxes of material. Because of upcoming holidays and the backlog [explained earlier in his email] I request that you allow the Fiscal unit until December 4, 2016 to complete the task of retrieving, copying and delivery of Mr. Lowe's record." Mr. West further explained that "juror forms, which list the names, phone numbers and addresses of potential jurors will not be provided. Furthermore, DPA will be redacting personal email addresses and cell phone numbers of the parties, the judges, and/or law clerks."
Pursuant to KRS 61.880(1), an agency must respond to the requester within three days after receipt of an Open Records request, and it is this lack of response that Mr. Lowe appeals regarding his requests to Scott West, Edward Monahan, and Justin Hoskins. The record on appeal contains insufficient information for the Office of the Attorney General to resolve the factual dispute concerning the delivery and receipt of the open records requests allegedly made to Scott West, Edward Monahan, and Justin Hoskins. Mr. West's response to the appeal states that neither he nor Mr. Lamb have any record of receiving the original requests. Due to the lack of information presented in this appeal, we make no finding in this regard. See 05-ORD-013, 03-ORD-061. "Obviously, an agency cannot respond to a request it does not receive." 05-ORD-013. Absent objective proof, this office finds no procedural violation by the DPA in not responding prior to receipt of the Open Records appeal.
Eva Hagar's response to Mr. Lowe explained that she did not have custody of the requested records, but provided him with the name and address of the person who did have custody. Ms. Hagar's response was in compliance with KRS 61.872(4). 3 Mr. Lowe's appeal complains that Ms. Hagar provided an incorrect address for Mr. West, however we do not find that a mistake in the address information constitutes a violation of the Open Records Act. Ms. Hagar complied with the relevant provision of the Open Records Act in directing Mr. Lowe to the custodian of the requested records. 08-ORD-204.
Jim Lamb's response to Mr. Lowe's request is incorporated into Mr. West's response to this appeal. In that response, Mr. Lamb explains that he will not be able to complete the task of retrieving, copying, and delivering the response to Mr. Lowe's request until December 4, 2016. The DPA's response to Mr. Lowe's request is procedurally deficient in that it failed to cite KRS 61.872(5) 4 as the statutory basis for delaying production of the requested records beyond three days.
Likewise, Mr. West's letter states that certain records 5 will not be provided, but fails to cite the statutory exemption that allows for withholding personal information such as addresses and phone numbers. The agency's response satisfied neither KRS 61.880(1) 6 nor KRS 61.872(5). See 14-ORD-226. A public agency such as DPA must comply with the substantive and procedural requirements of the Open Records Act.
Finally, Mr. West's response to the appeal argues that DPA client files should not come within the purview of an Open Records request. We respectfully decline to accept the arguments put forth by Mr. West on this issue. Mr. West's first argument clams that, while those files are "public records, " they are not "open records" because they are inaccessible to the general public due to attorney-client privilege. Mr. West further argued that a client (of the DPA) has access to his/her file because the client owns the contents pursuant to Hiatt v. Clark, 194 S.W.3d 234 (Ky. 2006), and thus the agency does not control the client files. While this "ownership" argument may be a separate reason for allowing a client access to his/her file, it does not eliminate the determination that such files are "public records" under KRS 61.870. DPA is a "public agency" as defined at KRS 61.870(1)(b): "Every state or local government department, division, bureau, board, commission, and authority." The DPA is a department of state government established pursuant to KRS 31.010. Likewise, DPA's client files are "public records" as defined at KRS 61.870(2), which states in pertinent part: "'Public record' means 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. " The client files are in the possession of DPA through its attorney employees and are therefore subject to the Open Records Act.
Mr. West also argues that the language of KRS 61.878(1) ("[t]he following public records are excluded from the application of KRS 61.870 to 61.884") excludes the client files from any application of the Open Records Act as the attorney-client privilege would prevent disclosure of those files to the public. We reject this argument. The very language of KRS 61.878(1) uses the term "public records" in regards to records which may be excluded from disclosure and to read the statute in the manner argued by Mr. West creates a circular argument, whereby "public records" are excluded from the definition of "public records. " "Where there is an apparent conflict between statutes or sections thereof, it is the duty of the court to try to harmonize the interpretation of the law so as to give effect to both sections or statutes if possible." Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky.1983). This office interprets KRS 61.878(1) in harmony with the entire Open Records Act, which operates to permit certain public records to be withheld from public inspection, but does not exempt the public agency from any other requirements of the Open Records Act, such as responding within three days, explaining the specific exception authorizing the withholding of the record, etc.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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 proceeding.
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