September 10, 1996

In re: Mark L. Dyer/Boyd County Detention Center

Open Records Decision

This matter comes to the Attorney General on appeal from the Boyd County Detention Center's denial of Mark L. Dyer's July 18, 1996, requests for access to all records relating to the Center's investigation into the charges of trafficking in percodan which were brought against Mr. Dyer in late 1980, and Mr. Dyer's incarceration at the Center from July, 1994, to January 31, 1996. On July 29, 1996, Boyd County Jailer Bob Stevens denied Mr. Dyer's request, advising him that the records of the Detention Center “are not public records and therefore, not subject to the open records law.” Mr. Stevens concluded that he would “not release any copies of them without a direct order from the appropriate Judge.”

Mr. Dyer challenges the Center's position. Relying on OAG 79-575, and subsequent open records decisions in which that opinion is cited as authority, he maintains that records of a detention center are public records. He urges this office to issue a decision consistent with this view, and declare that the Center's response constitutes a violation of the provisions of the Open Records Act. For the reasons set forth below, we conclude that the Boyd County Detention Center's response to Mr. Dyer's request was both procedurally and substantively deficient.

Before we proceed to a more detailed analysis of the Center's response, we affirm Mr. Dyer's view that a detention center or jail is a public agency within the meaning of KRS 61.870(1). The pertinent part of that statute defines the term “public agency” as:

(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;

(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]

There can be little doubt that the records of a county detention center or jail fall squarely within the parameters of KRS 61.870(1)(f) and (j). Thus, this office has held that records containing the names of persons lodged in a jail or detention center as inmates must be released. OAG 81-395. We have also held that the general business records of a jail or detention center are nonexempt public records. OAG 79-546; see also, OAG 79-575. Conversely, we have recognized that portions of the policy and procedure manuals of a jail or Boyd County Detention Center may be exempt, thereby indirectly acknowledging their otherwise public character. 95-ORD-121. We therefore conclude that Mr. Stevens was in error when he stated that records of the detention center are not public records.

As noted, the Center's response was procedurally deficient. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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. 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.

Mr. Dyer's requests were tendered on July 18, 1996. Mr. Stevens's response was issued on July 29, 1996. Thus, seven business days elapsed between the date of the request and the date of the response. The Detention Center's failure to respond within three business days constituted a procedural violation of the Act. Moreover, in denying Mr. Dyer's request Mr. Stevens failed to cite any exception authorizing nondisclosure of the records requested, or provide any explanation for how the exception applies to the record withheld. This omission also constituted a violation of KRS 61.880(1).

Turning to the substantive issue in this appeal, we find that the Boyd County Detention Center failed to meet its statutory burden of proof in denying Mr. Dyer's request. KRS 61.880(2)(c). The Center invoked no exception authorizing nondisclosure of the records identified in Mr. Dyer's request, dismissing the request on the basis that its records are not governed by the Open Records Act. Inasmuch as we have established that this is not a proper basis for denial, we are left with no alternative but to declare that the Center violated 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 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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Mark L. Dyer, #86258

Otter Creek Correctional Center

P. O. Box 500 D-14

Wheelwright KY 41669-0500

Bob Stevens, Jailer

Boyd County Detention Center

P. O. Box 455

Catlettsburg KY 41129