NOT TO BE PUBLISHED
97-ORD-109
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