MARK L. DYER v. BOYD COUNTY DETENTION CENTER; BOB STEVENS, JAILER
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RENDERED: June 19, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0616-MR
AND
NO. 97-CA-1564-MR
MARK L. DYER
v.
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE KELLEY R. ASBURY, JUDGE
ACTION NO. 96-CI-939
BOYD COUNTY DETENTION CENTER;
BOB STEVENS, JAILER
APPELLEES
* * * * * * * * * *
OPINION AFFIRMING IN PART
REVERSING IN PART AND REMANDING
BEFORE:
COMBS, HUDDLESTON, AND KNOPF, JUDGES.
KNOPF, JUDGE.
On two (2) occasions in 1996, appellant, Mark Dyer
filed open records requests with the Boyd County Detention Center
and its Jailer Bob Stevens (together, Detention Center).
Each
time, the requests were denied and Dyer appealed to the Office of
the Attorney General (AG).
favor of appellant.
On both occasions the AG ruled in
Following his favorable AG rulings, the
appellant, on each occasion, filed a motion for a declaratory
judgment in Boyd Circuit Court seeking to, inter alia, enforce
the AG ruling.
Following the trial court’s judgment on his
motion, appellant, on each occasion, appealed to this Court.
The
two (2) appeals were subsequently consolidated and are considered
together in this opinion.
We affirm in part, reverse in part,
and remand.
APPEAL 97-CA-000616-MR
On July 18, 1996, Dyer filed an open records request
(KRS 61.870 et. seq.) with the Detention Center seeking various
records relating to his incarceration at the center and the full
names and addresses of various employees of the center.
The
Detention Center denied the request on the grounds that its
records are not public records.
to KRS 61.880(2).
Dyer appealed to the AG pursuant
On September 10, 1996, the AG issued an
opinion finding that the Detention Center’s records were public
records and declaring that the Detention Center had violated the
Open Records Act.1
On September 30, 1996, Dyer filed a motion for
declaratory judgment (KRS 418.040) requesting that the Detention
Center be required to furnish the requested records.
The motion
also alleged that, as a result of its denial, the Detention
Center had violated various constitutional rights of Dyer and
sought various monetary damages and awards.
Following a hearing,
on February 19, 1997, the trial court issued a one (1) page order
directing the Detention Center to provide Dyer with the requested
personnel information, with the exception of the employees’ home
addresses.
fees.
The trial court denied Dyer’s request for damages and
The order did not address the various other issues raised
in appellant’s pleadings.
1
On February 20, 1997, Dyer filed a
The opinion did not direct the Detention Center to turn over specific records to Dyer.
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motion requesting additional findings of fact and conclusions of
law regarding the issues raised in his pleadings (CR 41.02,
52.01, and 52.04) and a motion to alter, amend, or vacate
judgment (CR 59.05).
On February 28, 1997, the trial court
entered an order denying these motions.
The trial court ordered the Detention Center to provide
Dyer with the information requested in his open records request
with the exception of the home addresses of the Detention Center
employees.
The trial court properly denied the request for the
home addresses of the employees.
Information of a personal
nature where the public disclosure would constitute a clearly
unwarranted invasion of personal privacy is not required to be
disclosed under the Open Records Act.
KRS 61.878(1)(a).
Though
often publicly available through other sources, home addresses
are generally accepted by society as information in which an
individual has an expectation of privacy and is not less private
for Open Records Act purposes just because the information is
available somewhere else.
Zink v. Department of Workers’ Claims,
Ky. App., 902 S.W.2d 825 (1994).
Hence, Dyer is not entitled to
the home addresses of the Detention Center’s personnel.
See OAG
90-60 (KRS 61.878(1)(a) requires disclosure of the business
addresses of members of the University of Kentucky Alumni
Association, but not the home addresses).
We affirm the judgment
of the trial court relating to the open records issue.
Dyer’s appeal raises seven (7) additional arguments:
(1) the trial court abused its discretion by refusing his request
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for a jury trial; (2) the trial court abused its discretion when
it did not rule that appellees violated his rights; (3) the trial
court erred by not ruling on all issues that were submitted by
the appellant; (4) the trial court erred and abused its
discretion by denying the appellant any monetary damages; (5) the
trial court erred by not ruling the appellees' response to motion
for declaratory judgment procedurally deficient; (6) it was error
and an abuse of discretion for the trial court to overrule his
motion for findings of fact and conclusions of law; and (7) the
trial court erred and abused its discretion by not vacating its
judgment and altering and amending its judgment and entering a
new one.
The trial court’s order of February 19, 1997, consisted
of a one (1) page summary of its decision and did not address any
of these issues.
In actions tried without a jury, the trial
court is required to find the facts specifically and state
separately its conclusions of law thereon.
CR 52.01.
We are
precluded from deciding the remaining issues because the trial
court failed to make any findings of fact or conclusions of law.
Klop v. Klop, Ky. App., 763 S.W.2d 663 (1989).
That failure,
standing alone, would be insufficient grounds for reversal and
remand.
CR 52.04.
However, Dyer properly and timely preserved
this particular issue for review by timely filing a motion, as
contemplated by CR 52.02, requesting findings of fact.
This
motion was denied by the trial court without explanation.
The appellee concedes that “[p]erhaps the trial court
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should have made specific findings of fact and conclusions of law
as requested by Mr. Dyer.”
In order for us to engage in a
meaningful review of the trial court’s decision, we need the
basic findings upon which it basis its holdings.
This action is,
therefore, remanded to the trial court for entry of additional
findings of fact and conclusions of law sufficient to determine
the merits of appellant's claims.2
APPEAL 97-CA-001564-MR
On December 6 and December 16, 1996, appellant filed an
open records request seeking copies of menus showing “all meals
served to [appellant’s] cell, and the cell next to [appellant’s]
that held mostly blacks and Muslims . . .”
The Detention Center
provided the menus for appellant’s cell but denied the request
for the menus of the adjacent cell on the grounds that the
release of the information would result in an invasion of
personal privacy.
Dyer again appealed to the Attorney General.
On March 25, 1997, the AG issued an opinion finding
that the Detention Center’s denial was improper.
On May 28,
1997, Dyer again filed a motion for declaratory judgment seeking
to enforce the AG’s opinion.
Again appellant alleged that the
appellees had violated various rights and sought various monetary
damages.
On June 6, 1997, the trial court issued an order,
without stating its reason, sua sponte summarily denying Dyer’s
petition.
On June 12, 1997, appellant filed a motion to
2
In conjunction with our conclusion that a remand is necessary, we refer the trial court to the
final portion of this opinion addressing the argument of the appellee that these issues are
frivolous.
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reconsider.
On June 20, 1997, the trial court denied this
motion.
After the AG has rendered an opinion, if an appeal is
not filed within thirty (30) days, the AG’s decision has the
force and effect of law and is enforceable in the circuit court
of the county where the public agency has its principal place of
business.
KRS 61.880(5)(b).
We reverse the judgment of the
trial court denying appellant’s motion to require the Detention
Center to provide him with the food menus requested in his open
records request.
On remand the trial court should enter an order
requiring the Detention Center to supply Dyer with this
information.3
With respect to the remaining issues, as with this
appeal’s companion case, and for the same reasons, we vacate and
remand for additional findings.4
APPELLEES' ARGUMENT
The Detention Center argues that Dyer is simply
harassing the judicial system, advancing frivolous actions and
appeals, and should be stopped dead in his tracks.
While
appellant properly brought his actions to enforce the open
records opinions of the AG, there are convincing indications that
the appellees’ argument is correct.
For example, Dyer’s second
motion for declaratory judgment sought $900,000.00 in damages
3
The trial court made no finding, and the record is unclear, on whether the information has
already been provided. If it has, the issue is, of course, moot.
4
Again, however, we refer the trial court to our discussion at the appellees' argument.
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from each of twenty-three (23) potential defendants.5
Hence,
Dyer, in effect, sought $20,700,000.00 in damages because the
Detention Center resisted his request to tell him what the
inmates in the adjoining cell ate.6
Similarly, his first motion
went well beyond his legitimate interest in enforcing the AG’s
opinion.
There is a proper method for addressing the problem of
inmates who engage in frivolous and recreational litigation which
was, unfortunately, not followed in the proceedings below.
KRS
454.405(1) permits the dismissal of a civil action brought by an
inmate if the trial court is satisfied that the action is
malicious, harassing, without merit, or factually frivolous.
However, the trial court, in dismissing the case, must include as
part of its order specific findings as to the reasons for the
dismissal.
KRS 454.405(3).
On remand, we direct the trial
court’s attention to that portion of KRS 454.405(1) which
provides that the dismissal may be made at any time; KRS
454.405(4), which, in the event of a dismissal, provides for an
assessment of fines and costs against the inmate; and KRS
197.045(4)(a), which provides for the revocation of good time
credits if an action is dismissed for the reasons identified in
KRS 454.405.
5
In his second motion for declaratory judgment, in addition to Boyd County Detention Center
and Bob Stevens, appellant also names as defendants “One to Twenty-one employees [of the
Detention Center] . . .[to] be found at [a] later date through discovery, testimony, and the like.”
6
The AG concluded that the Detention Center had made a good faith argument that the
disputed records were exempt pursuant to KRS 61.880(1).
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For the forgoing reasons these appeals are affirmed in
part, reversed in part, and remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Mark L. Dyer, Pro Se
Beattyville, Kentucky
C. Phillip Hedrick
Catlettsburg, Kentucky
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