NOT TO BE PUBLISHED

 

 

 

 

 

 

 

97-ORD-135

August 28, 1997

 

In re: Mark L. Dyer/Otter Creek Correctional Center

Open Records Decision

This is an appeal from Otter Creek Correctional Centerís response  to Mark L. Dyerís June 7, 1997, request for copies of "all documents pertaining to the approval, design, construction, bills, payments, and the like, of the perimeter fence at O.C.C.C." In an undated response, records custodian David Carroll advised Mr. Dyer that his request was "denied due to lack of feasiable [sic] cause as well as the jepardization [sic] of the security of the institutions [sic] perimeter." The question presented in this appeal is whether O.C.C.C. violated the Open Records Act in responding to Mr. Dyerís request. For the reasons which follow, we find that although its response was procedurally deficient, O.C.C.C. properly withheld the disputed records. In our view, 97-ORD-134, a copy of which is attached hereto and incorporated by reference, is controlling.

We begin by noting that O.C.C.C.ís response was procedurally deficient. KRS 61.880(1) contains 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.

 

In responding to Mr. Dyerís request, O.C.C.C. failed to 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. Captain Carrollís vague references to a "lack of feasiable [sic] cause" and "jepardization [sic] of the [institutionís] security" do not provide a sufficient basis for denying access to public records. Moreover, because the response is not dated, it is unclear whether it was issued within three work days. We remind O.C.C.C. 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 an open records request," 93-ORD-125, p. 5, and urge it to carefully review the cited provision to insure that future responses conform to the Act.

Turning to the substantive issue in this appeal, we find that O.C.C.C. properly denied Mr. Dyerís request. Were it not for this officeís recent decision in a nearly identical appeal, we would not reach this conclusion, but would be compelled to find against the facility and order disclosure. In 97-ORD-134, Mr. Dyer requested the same records from Lee Adjustment Center. In denying his request, the Center relied on KRS 197.025(1) and KRS 197.510(7), advising him that "information regarding design and construction constitute a security threat [,and] other items are financial records of a private provider . . . [which] would place provider at a disadvantage if disclosed." At page 2 of that decision, this office observed:

It does not require an advanced degree in penology and security management to appreciate how disclosure of records relating to the design and construction of the perimeter fence . . . would constitute a threat to institutional security.

We affirmed the Centerís denial of Mr. Dyerís request on this basis.

We also affirmed the Centerís denial of his request for copies of financial records relating to the perimeter fence. Relying on 94-ORD-27, in which this office construed KRS 197.510(7), we concluded that the provision is clear on its face. Financial records of private providers are specifically excluded from public inspection. We believe that 97-ORD-27, a copy of which is attached hereto and incorporated by reference, is controlling. O.C.C.C. did not violate the Open Records Act in denying Mr. Dyerís request.

Nevertheless, we admonish O.C.C.C.:

The language of the statute 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, Ky. App., 926 SW2d 856, 858 (1996). O.C.C.C. should be guided by these observations in responding to future open records requests. O.C.C.C. must comply with the procedural requirements of the Act or risk adverse decisions from this office and the courts.

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

 

#792

Enclosures

Distributed to:

Mark L. Dyer #86258

Lee Adjustment Center

P. O. Box 900

Beattyville KY 41311-0900

David Carroll

Custodian of Records

Otter Creek Correctional Center

Wheelwright KY 41669

R. Allen McCartney

Attorney at Law

Seagrams Building, First Floor

2500 Seventh Street Road

Louisville KY 40208-1029