Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Grant County Detention Center ("GCDC") violated the Open Records Act in denying Hanif Yazid's October 2, 2019, request for the following:
1) Video of battery Montgomery [sic] on Yazid 5-27-19 from the time Yazid was let out of cell until he was handcuff[ed] by guards[;]
2) Video [from] 5-29-19 of Ky. State Police entering [GCDC] and taking Yazid['s] statement in a rec room[;]
3) All mental health notes taken by Jamie . . . starting on 5-21-19 [sic] three sessions[; and,]
4) Copy of battery [complaint] filed against Montgomery by Ky. State Police on 5-29-19 [and] Easter Day [write-up.]
By letter dated October 8, 2019, Chief Deputy Jackie Bodenhamer acknowledged receipt of Mr. Yazid's request and notified him that "it has been forwarded to our County Attorney for review." Having received no further correspondence regarding his request, Mr. Yazid initiated this appeal by letter dated November 4, 2019. Based on the following, this office finds the agency's initial and supplemental response both procedurally and substantively deficient except insofar as the Prison Rape Elimination Act ("PREA") applies to records withheld.
Upon receiving notification of Mr. Yazid's appeal, Assistant County Attorney Pete W. Whaley responded on behalf of GCDC. He initially sated that Mr. Yazid's request "raised one or more open records issues with which this department had not previously dealt, specifically the application of the Prison Rape Elimination Act ['PREA']. As a result, the matter was researched, reviewed and discussed by the Grant County Attorney, Assistant County Attorney and Chief Deputy [GCDC]." Ultimately, the agency determined that denial of the request was appropriate. He indicated this "interdepartmental review also resulted in a lack of a timely response." 1This office finds that neither of the responses provided on behalf of GCDC satisfied KRS 61.880(1) or KRS 61.872(5).
A public agency such as GCDC is required to comply with substantive and procedural requirements of the Open Records Act. See 19-ORD-054. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to written requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." (Emphasis added.) A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140; 19-ORD-054. However, "KRS 197.025(7) does extend the deadline for response to a request submitted to the Department of Corrections from three days, as provided for in KRS 61.880(1), to five days. It has been construed to apply to correctional facilities and jails." 212-ORD-037, p. 3; 15-ORD-152; 16-ORD-054; 18-ORD-211. Accordingly, GCDC was not statutorily required to issue a written response to Mr. Yazid until the fifth working day following receipt of his October 2, 2019, request. GCDC complied with KRS 197.025(7) by issuing a written response by dated October 8, 2019, four days later, excluding weekends and holidays.
However, the agency's October 8, 2019, response to Mr. Yazid's October 2, 2019, was otherwise deficient, as it failed to either provide access to all existing responsive documents within that period or cite the applicable statutory exception(s) and explain how it applied to any records that GCDC withheld. GCDC failed, in the alternative, to properly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), by citing that provision and providing not only a specific date by which documents would be made available, but also a detailed explanation of the cause for delay in producing any existing responsive documents. See 12-ORD-151; 13-ORD-035; 16-ORD-153; 19-ORD-054. "[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-153. KRS 61.872(5) supports this position, authorizing postponement of access to public records beyond three business days only "[i]f the public record is in active use, in storage or not otherwise available."
GCDC did not reference KRS 61.872(5) in either of its responses and did not invoke KRS 61.872(5) on appeal. 3GCDC also failed to satisfy the requirements of this exception to KRS 61.880(1), and therefore committed a procedural violation of the Act. See 18-ORD-076. GCDC did not specify the date by which existing nonexempt records, if any, would be made available, nor did it specify which permissible reason for delay applied, if any, or to what extent. See 12-ORD-211; 15-ORD-174; 16-ORD-206. Compare 17-ORD-252; 19-ORD-054. "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. Additionally, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection." 01-ORD-38, p. 7; 19-ORD-132.
The need to review and redact does not constitute a detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 02-ORD-217; 10-ORD-138; 16-ORD-206; 19-ORD-054. Likewise, merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause ... for further delay." 15-ORD-029, p. 2; 16-ORD-206. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.'
Lexington-Fayette Urban Cnty. Gov't v. Johnson , 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3; 02-ORD-217; 12-ORD-043; 13-ORD-168; 19-ORD-132. When viewed in light of this body of controlling authority, the agency's belated explanation -- that a response necessitated interdepartmental research, review, and discussion -- was equally inadequate to satisfy the requirement of KRS 61.872(5). 4There is "nothing wrong with [GCDC's apparent] policy of processing open records requests through its legal department. . . . This policy ensures uniformity and adherence to the law. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 19-ORD-132.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency[.]" KRS 61.880(1) also requires that a "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." A "bare assertion" does not satisfy the agency's burden. 00-ORD-10, p. 11; 19-ORD-132. The "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996);
City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 851 (Ky. 2013); 04-ORD-208; 16-ORD-064; 19-ORD-132.
On appeal, GCDC merely asserted "that [records documenting] the events occurring on May 27, 2019 were exempt under KRS 61.878(1)(h) insofar as they related directly to an open and ongoing criminal investigation." However, when a public agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed that, "In order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or a public agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Id. , pp. 1-2. Unlike any of the other exceptions, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. 95-ORD-95, pp. 2-3; 19-ORD-023. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. See 02-ORD-179; 05-ORD-178; 07-ORD-139; 11-ORD-134.
In
City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, the Kentucky Supreme Court addressed in detail the "law enforcement exception" codified at KRS 61.878(1)(h). The Court noted that "a police department's investigatory file is not categorically exempt from disclosure under the Open Records Act merely because it pertains to a prospective enforcement action ." Id. at 849 (emphasis added). Indeed, the "plain terms" of the Act "do not provide for such a categorical exemption." Id. In so holding, the Court expressly rejected the City's position that merely because the conviction of the individual whose investigative file was at issue remained subject to collateral challenge, its entire investigative file was exempt. Id. The Court further held that KRS 61.878(1)(h) is properly invoked " only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content , its release poses a concrete risk of harm to the agency in the prospective action." Id. at 851 (emphasis added); 19-ORD-023.
A concrete risk of harm "by definition, must be something more than a hypothetical or speculative concern." Id. at 851. "[T]he mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption." Id. at 852 (overruling, in part,
Skaggs v. Redford , 844 S.W.2d 389 (Ky. 1992)). A public agency should provide the requester and the court "with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it." Id. ; 18-ORD-177. In other words, the public agency must identify specific records or categories of records "the particular nature of which renders them exempt. [T]he law enforcement exemption cannot be invoked without at least that minimum degree of factual justification...." Id. (Emphasis added). Thus, a "concrete, non-speculative risk of harm must be attributed to a particular record or records." 18-ORD-177, p. 9; 19-ORD-023.
The record in this case remains unclear as to whether GCDC invoked KRS 61.878(1)(h) relative to its own investigation or invoked that exception on behalf of another public agency, such as KSP. Even assuming that GCDC can satisfy the first element of KRS 61.878(1)(h), the agency has not demonstrated that all of the records being sought were "compiled in the process of detecting and investigating statutory or regulatory violations." To satisfy this element, a public agency must do more than simply assert that records "may be a component of the criminal case or possible evidence of the crime(s)." See 05-ORD-078; 09-ORD-012; 17-ORD-230. The record lacks evidence by which to determine whether some or all existing responsive public records would satisfy this element of KRS 61.878(1)(h).
Lastly, GCDC has not satisfied the final requirement. The agency relied on the pending nature of the criminal investigation exclusively in arguing implicitly that disclosure of any responsive documentation would be premature and therefore harmful. This argument "is generic and could equally be applied to 'anything from a law enforcement file'; that is exactly what the Supreme Court indicated was not sufficient under KRS 61.878(1)(h). City of Fort Thomas, supra , 406 S.W.3d at 852." 17-ORD-213, p. 5; 19-ORD-023. In summary, GCDC has failed to identify a concrete, non-speculative risk of harm arising from particular records or categories of records; it has not provided the specific factual justification required under City of Ft. Thomas . 18-ORD-177, p. 10; 19-ORD-023. Under the circumstances presented, this office is unable to find that GCDC has justified its denial on the basis of KRS 61.878(1)(h). See KRS 61.880(1) and (2)(c); 16-ORD-084; 18-ORD-226; 19-ORD-023.
Citing 18-ORD-206 without further explanation, counsel further argued that "events surrounding the 'Easter Day write up' triggered the provisions of the [PREA] and as such were exempt under the terms of KRS 61.878(1)(k)." 5GCDC committed a violation of KRS 61.880(1) insofar as the "general citation to PREA was insufficient because it did not include 28 CFR 115.61(b), the specific legal authority on which CPP 14.7(J) was based." 18-ORD-206, p. 4. Notwithstanding this procedural deficiency and the lack of specificity otherwise provided, the analysis of the PREA found in 18-ORD-206 (a copy of which is enclosed) appears to be controlling here based on the limited facts presented. 6
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Regarding the accessibility of Mr. Yazid's mental health records, Mr. Whaley stated that "[i]t has generally been the policy of this department to notify requesters that their medical records may be obtained outside the scope of an open records request." While KRS 422.317(1) requires a hospital or a health care provider to provide, without charge, a copy of a patient's medical record to him upon written request, under subsection (2) of that provision, the Department of Corrections ("DOC") "shall not be considered as a health care provider under this section[.]" (Emphasis added). However, DOC but may choose to "make medical records of an individual inmate available to that individual inmate unless the department, through its designee, determines that the provision of the record is subject to the provisions of KRS 197.025." In short, DOC is exempt from KRS 422.317(1).
The records in dispute are, by definition, "public record[s]" under KRS 61.870(2)(though protected from disclosure under KRS 61.878(1)(a) to all but Mr. Yazid or his authorized representative unless KRS 197.025 applies). See 09-ORD-032; 15-ORD-180. It remains unclear if GCDC has notified Mr. Yazid in writing that he is entitled to access. Because GCDC has not denied Mr. Yazid access to his mental health records, but instead has indicated a willingness to provide him with a copy (upon receipt of payment for the copies per KRS 61.874 presumably), this office trusts any related issues are moot per 40 KAR 1:030 Section 6.
2 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.
3 Although KRS 197.025(7) modifies the three-day period to a five-day period, the requirement to provide the detailed explanation is not negated." 17-ORD-262, p. 2, n. 1. See 18-ORD-144.
4 GCDC, like any public agency, is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. A "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act." 02-ORD-165, p. 3; 09-ORD-091; 15-ORD-174; 16-ORD-279; 17-ORD-105. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4; 19-ORD-132.
5 KRS 61.878(1)(k) excludes from application of the Act "all public records or information the disclosure of which is prohibited by federal law or regulation." The PREA is codified at 34 U.S.C. 30301 et. seq . Among the Department of Justice regulations issued pursuant to PREA is 28 CFR 115.61(b), promulgated in 2012, which provides:
Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.
The Department of Corrections ("DOC") implemented this regulation by enacting Corrections Policies and Procedures ("CPP") 14.7(J), which states:
All information in a report or investigation of a sexual offense shall be kept confidential except to the extent necessary to report to an appropriate supervisor, adequately investigate, provide treatment, or make security or management decisions. An individual interviewed in the course of resolving the complaint shall be cautioned to treat the information as confidential. Breach of this confidentiality shall be grounds for disciplinary action.
6 In Edmondson v. Alig , 926 S.W.2d 856, the Kentucky Court of Appeals recognized that despite undeniable deficiencies in the agency's response, the circuit court had improperly ordered release of the records, "presumably as the only sanction available . . . ." Id. at 859. Following this reasoning, the Attorney General has also recognized that a public agency's "error cannot be remedied by committing another [namely, requiring disclosure of statutorily protected information] and thus compounding mistakes at the possible expense of due process." Id. ; 07-ORD-258; 08-ORD-143; 12-ORD-039; 15-ORD-168.