Friday, August 19, 2016

Purpose of a request is not a factor a public entity can consider before fulfilling record request

The purpose of an Open Records Act request is an irrelevant point in the public agency's decision to turn over records properly requested. 

Attorney General Andy Beshear ruled against the public official in an opinion in In re: Crystal Emberton/Carroll County Jailer, 16-ORD-136, released July 6, 2016. 

Emberton requested records, videos, and other evidence depicting an incident in the lobby of the county’s detention center on April 12. Three days later, Jailer Michael Humphrey informed Emberton that it would cost $25, plus $5.80 for shipping. The reply also included that if the request was for legal purposes, she was allowed to pay and get the requested records, but if it was for social media, he would refuse the request. 

The money was paid for the records, but Emberton never heard anything more from Humphrey, which prompted her to appeal to Beshear. Humphrey responded to the appeal, which argued that the Open Records Act required Emberton to state the purpose for obtaining the records. It also alleged that there was an exemption because the jail was a law enforcement agency. 

The attorney general's opinion ruled this response and reasoning were not adequate justifications for not provided the requested records. 

Beshear stated the law enforcement exception was not cited properly nor explained in the response, as the act required agencies that are denying a response to specifically state the exception. The law enforcement exception requires that the agency must be involved in an administrative adjudication with information compiled for violations, if disclosure would harm the agency

Beshear assumed in the opinion that the jailer and detention center was a law enforcement agency, but stated that Humphrey failed to establish the requirements of the exception, in that he did not show that the records were compiled “in the process of the detecting and investigating statutory or regulatory violations.”

He also stated that Humphrey failed to illustrate that there would be harm to the agency if the records were released, as per the Kentucky Supreme Court in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). 

Finally, Beshear went over the purpose requirement that Humphrey alluded to. In 08-ORD-080 it is stated that the purpose of how requested records will be used is not material to the decision to comply. This means that an agency cannot require a party to state the purpose of the request and consider it in complying or not complying with the request. 

Humphrey was found in violation because he did not provide a lawful basis to withhold the records. 

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