July 1, 1997

In re: Thomas E. Brock III/Dismas House

Open Records Decision

This matter comes to the Attorney General on appeal from the Dismas House's failure to respond to Mr. Thomas E. Brock III's open records request, dated May 11, 1997, in which he requested to review the following records:

1) Daily Log from March 7th - April 29, 1997 and list of residents in house during period.

2) All Casework Records pertaining to me ie: Progress Reports, Program Participation, Conduct Reports etc.

3) Copy of report sent to Parole Officer Mike Williams whereas I was arrested and a PV Hold was placed upon me over incident occurred on April 28, 1997.

4) Any and all disciplinary reports filed against me and sanctions imposed.

5) A copy of all St. Patricks House Rules & Regulations.

In his letter of appeal, dated May 30, 1997, Mr. Brock indicated that he had yet to receive a response to his open records request.

On June 4, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the Director of the Dismas House and another Notification to the Litigation Coordinator of the Dismas House on June 9, 1997. A copy of the letter of appeal was attached to each. Each Notification stated that, pursuant to 40 KAR 1:030, Section 2, the agency may respond to the appeal. This office received no response.

We are asked to determine if the Dismas House violated the Open Records Act by failing to respond to Mr. Brock's request. For the reasons which follow, we conclude that the agency's actions were procedurally and substantively in violation of the Act.

In the absence of a response from the agency to the contrary, we will presume, for purposes of this appeal, that the Dismas House is a public agency subject to the Open Records Act.

KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. KRS 61.880(1) 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.

As noted above, this office on June 5th and 9th mailed to the Director and the Litigation Coordinator of the Dismas House, respectively, a notification of Mr. Brock's appeal and attached a copy of the letter of appeal to each. Thus, the agency was afforded three opportunities to respond to Mr. Brock's request. First, after receipt of his initial open records request; and after receipt of the two notifications of the appeal. This failure to respond constitutes a violation of KRS 61.880(1).

This office has stated on numerous occasions that the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents. Any public agency has the duty to respond to the request in writing within the statutorily mandated time frame. In addition, the agency has the burden of justifying the withholding of a record by references to the appropriate exception to public inspection and by briefly explaining how that exception applies to the particular document withheld. 95-ORD-159 and 95-ORD-114.

It is, therefore, the decision of the Attorney General that, having failed to respond to the request, as required by KRS 61.880(1), the public agency's response is both procedurally and substantively deficient and the documents requested were thus improperly withheld.

While it is clear that the public agency still has the burden of proof relative to its denial of a request, and this office will not make the agency's case in appeals involving discretionary release of public records, here we are aware of a statutory prohibition on disclosure of at least one type of record requested by Mr. Brock, namely the report the Dismas House sent to Parole Officer Williams which Mr. Brock requested in item number three of his request. This office will not compel the disclosure of a record made confidential by a clearly recognized or established statutory enactment.

In a companion appeal to this one, we held that the Department of Corrections properly denied Mr. Brock access to the report which the Dismas House sent to Parole Officer Mike Williams under authority of KRS 61.878(1)(l) and KRS 439.510. The latter statute makes confidential all information obtained in the discharge of official duty by any probation or parole officer. The statute further directs that such information shall not be disclosed directly or indirectly to any person other than the court, board, or cabinet unless otherwise ordered by such court, board, or cabinet. Accordingly, there exists a statutory basis for the Dismas House to withhold from disclosure the report it sent to Parole Officer Williams which Mr. Brock requested in item number three of his request.

As to the remaining records which Mr. Brock requested, we find that by failing to respond to the request, and thus state a statutory basis for denying access, the Dismas House violated the Open Records Act. Although there may be discretionary exceptions to disclosure which apply to one or more of the categories of records he requested, the Attorney General can not, and will not, as noted above, make the agency's case in matters pertaining to discretionary release of public records. Accordingly, the remaining records should be made available for Mr. Brock's inspection.

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 filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General

# 603

Distributed to:

Thomas E. Brock #110117

Roederer Correctional Complex

P.O. Box 69

LaGrange KY 40031

Linda Phelps, Director

Dismas House

1501 Lytle Street

Louisville KY 40203