NOT TO BE PUBLISHED

96-ORD-279

December 30, 1996

In re: Harvey Ison/Floyd County Jail

Open Records Decision

This matter comes to the Attorney General on appeal from the response of the Floyd County Jail to the open records request of Mr. Harvey Ison. In his letter of appeal, Mr. Ison states he did not include his original request letter or the jail's response because he had only one copy of each and feared if he sent them out to get copies, he might not get them back. Instead, he provided this office with handwritten quotes of his request and the jail's response. Mr. Ison states he made the following request:

I request to inspect the following document(s): Corrections Policies and Procedures, Institutional Policies and Procedures, and Institutional File for Harvey Ison, also any and all information relating to my removal from the work release program here at the Floyd County Jail, if this information is not available a brief statement regarding my removal will be appropriate.

In his letter of appeal, Mr. Ison states that the response of Mr. Roger L. Webb, Floyd County Jailer, to his request was as follows:

The following disposition was made of the above request: A Inmate Orientation for the Floyd County Detention was given to Harvey Ison on this 24th day of Oct. 1996. In reference to work release Mr. Ison is not removed from any work release. For the past few days there has not been any work available.

On October 29, 1996, we sent a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Ison's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Roger E. Webb, Jailer of Floyd County, provided this office with a response to the issues raised in this appeal. In the response, no challenge is made as to the accuracy of Mr. Ison's handwritten quotes of his request and the jail's response. Thus, we will treat them as accurate for purposes of this appeal.

In the response provided this office, Mr. Webb states in part:

On 10/24/96 Mr. Ison requested a copy of the Inmate Orientation. On 10/24/96 a copy of the Inmate Orientation was given to Mr. Ison.

On 10/23/96 Mr. Harvey Ison requested to view his legal material. At 14:00 hours on that same date Mr. Ison was permitted to view his papers in the multi-purpose room of the Detention Center. Also, on 11/01/96 at 14:55 hours Mr. Ison was again permitted to have access to his legal materials.

Due to the fact that we have no Law Library here in the Floyd County Detention Center, I talked with Chief Deputy Stan Wilkins at the Pike County Detention Center and advised him that Mr. Ison was representing himself in a legal case, and would he consider housing him, since Pike County DC has a Law Library. On that same date, 11/14/96, Mr. Ison was transferred to the Pike County Detention Center.

We are asked to determine whether the response of the jail was consistent with the Open Records Act. For the reasons which follow, we conclude that the response was consistent in part and inconsistent in part with the Act.

In his letter of appeal, Mr. Ison states he asked for and was given a copy of the Inmate Orientation and a brief statement regarding his work release status. Thus, this portion of the jail's response was consistent with the Open Records Act.

As to the request to inspect the Corrections Policies and Procedures, Institutional Policies and Procedures, and Institutional File for Harvey Ison, the response of the jail is inconsistent with the Act. From the documentation supplied this office, there is no indication that the jail responded to this portion of Mr. Ison's request in writing.

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.

Thus, to the extent that the jail failed to respond in writing, and within three business days, to Mr. Ison's request, its actions were procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

Accordingly, if it has not already done so, the jail should promptly respond to this portion of Mr. Ison's request in writing. If the request is denied, in whole or in part, the response should 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. KRS 61.880(2). If the jail does not have custody or control of the requested records, the jail should so notify Mr. Ison and furnish the name and location of the official custodian of the requested records. KRS 61.872(4).

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

James M. Ringo

Assistant Attorney General

1444

Distributed to:

Harvey Ison #114997

Pike County Jail

Suite 103

89 Division Street

Pikeville KY 41501

Roger Webb

Jailer

Floyd County Jail

Courthouse

Prestonsburg KY 41653