GEORGE WILLIAM SYKES v. JAMES KEMPER
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RENDERED:
MARCH 30, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000714-MR
GEORGE WILLIAM SYKES
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM GRAHAM, JUDGE
ACTION NO. 99-CI-01066
v.
JAMES KEMPER
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND McANULTY, JUDGES.
BARBER, JUDGE:
Appellant George William Sykes (“Sykes”) filed an
open records request pursuant to the Kentucky Open Records Act,
KRS 61.870 through 61.884.
Sykes asked for records of arrests
between the dates of May 11, 1992 through July 23, 1992, and for
January 17, 1993 through May 5, 1993.
This request was served on
the Franklin County Correctional Complex (“FCCC”), and Appellee
James Kemper, Jailor (“Kemper”).
The Kentucky Open Records Act requires that a response
to such a request be made within three days of the receipt
thereof.
See KRS 61.880(1).
Sykes received no response to his
request.
Twenty five days after the request was filed, Sykes
wrote to the Attorney General asking for a review as provided for
by KRS 61.880(2)(a).
FCCC/Kemper notified the Attorney General
that Sykes’ request “was never filed as an Open Records request
and what he appears to be requesting are court records.”
Following review of the agency’s response, the Attorney
General issued a decision faulting its lack of responsible
action.
The Attorney General’s decision states: ”For the reasons
that follow, we conclude that the Franklin County Correctional
Complex’s failure to respond to Mr. Sykes request constituted a
violation of the Open Records Act.”
The Attorney General stated
that failing to respond to the request in any way is a violation
of KRS 61.880(1), and is considered by the Attorney General to be
“particularly egregious”.
The Attorney General noted that an
individual requesting a copy of public records is not required to
use any specific form to request the records, so long as the
request is legible and the name of the requesting party is
affixed thereto.
Additionally, the Attorney General noted that
Kemper and FCCC had offered no explanation for their failure to
respond to the request in any fashion.
In defense of the agency’s actions, the Attorney
General stated that FCCC’s failure to produce the records
identified in that request “is attributable to the ambiguity of
the request and cannot be deemed a violation of the Act.”
The
Attorney General found no violation of the Open Records law with
regard to the failure to produce the requested records, as Sykes
did not clearly identify specific records within the custody or
control of the agency.
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The Attorney General directed FCCC/Kemper to reply
to Sykes’ request by August 2, 1999.
by the agency.
No timely response was made
Sykes then filed a second Open Records request on
August 30, 1999.
The agency responded to that request in a
timely fashion.
Sykes then filed an action against Kemper seeking
damages for his violation of the Kentucky Open Records Act.
Counsel for Kemper filed a Motion to Dismiss, which was granted
by the Franklin Circuit Court.
Sykes appeals the dismissal of
his action.
It was the decision of the Attorney General’s Office
that Sykes’ request satisfied the requirements of KRS 61.872(2),
and was a proper written request for records.
Sykes’ request
stated: “Dear Records Office: I am in need of a copy of my arrest
record for child support from the dates of 5/11/92 through
7/23/92 also between 1/17/93 through 5/93 . . . . Your assistance
is both needed and appreciated.”
Id. citation to birthday and
social security number deleted.
KRS 61.880(1) mandates agency
response to an Open Records request within three working days.
No response was ever provided by the agency to Sykes’ request.
KRS 61.880(2) provides for review of a denial of public records
by the Attorney General’s office.
Pursuant to KRS 61.882, the
circuit court of the county where the public agency has its
principal place of business is charged with enforcing the Open
Records laws.
Sykes requests damages for this breach of law.
The Commonwealth erroneously asserts that the Attorney
General found no violation of the Open Records Act on the part of
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FCCC or Kemper.
The Commonwealth misconstrues the Attorney
General’s opinion.
Although the Attorney General found that
there was no violation in the agency’s failure to produce the
requested records, the Attorney General’s Office found a clear
violation of the Act in the agency’s failure to timely respond to
Sykes’ request.
When any state agency is notified of a statutory
violation by enforcement officials exercising their
jurisdictional duties, the deficiency must be promptly remedied.
This has been made clear in our prior rulings under the Open
Records Act.
In construing KRS 61.880, this Court has held that:
“The language of the statute directing action is exact.
It
requires the custodian of records to provide particular and
detailed information in response to a request for documents.”
Edmondson v. Alig, Ky. App., 926 S.W.2d 826 (1996).
The duty to
properly respond does not place an undue burden upon public
servants.
The agency may deny the request, or may ask for a more
specific request, or may even tell the person asking for the
documents that another custodian has the records, but the agency
is required to promptly respond to the request in some fashion.
Id. at 858.
As the Court pointed out, failure to respond is “at
the possible expense of due process.”
Id. at 859.
In the
present case, the agency failed to comply with a specific
directive from the Attorney General.
Whatever the amount of
damages, if any, suffered by Sykes as a result of the statutory
violation, it pales in contrast to the agency’s violation of a
direct order from law enforcement officials charged with ensuring
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enforcement of the Act.
A state agency’s failure to respond to a
statutorily authorized inquiry will only serve to create delay
and dissension, and so must not be condoned.
The Commonwealth argues that we should not pass on the
merits of this case, asserting that Sykes did not raise the issue
of the agency’s failure to respond to his request in the circuit
court action, and that he is consequently barred from raising it
on appeal.
We disagree.
Sykes pro se.
The circuit court action was filed by
Pro se complaints should be held to less stringent
standards than those filed by trained legal professionals.
Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983).
See
In his
complaint, Sykes noted that the Attorney General’s Office found
that “F.C.C.C.’s failure to respond to Mr. Sykes’ June 23 and
June 28, 1999 request in a proper and timely fashion constituted
a violation of KRS 61.880(1).”
Sykes also claimed that
“Defendants violated KRS 61.880(1) when they failed to respond to
Plaintiff’s June 23 and June 28, 1999, request in a proper and
timely fashion.”
In his Response to Motion to Dismiss, Sykes
further argued that the failure of the agency to provide a timely
response denied “plaintiff’s constitutional rights to due process
by not filing his request as an open records request, then
redirecting the request.”
These assertions fully satisfied the
requirement that the issues raised on appeal first be heard by
the circuit court.
Kemper asks that Sykes’ complaint be dismissed because
Sykes eventually received the requested records, and because he
can show no specific damage from the late delivery of the
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records.
Although this argument may indicate that Sykes is not
entitled to great compensation for the breach of the Open Records
Act, it does not form a proper basis for dismissal of the
complaint.
For this reason we reverse the trial court’s
dismissal of the action.
KRS 61.882(5) provides that:
Any person who prevails against any agency in
any action in the courts . . . may, upon a
finding that the records were wilfully
withheld, be awarded costs, including a
reasonable attorney’s fee, incurred in
connection with the legal action.
Id.
Sykes requested relief from the circuit court, asking for a
reasonable attorney’s fee, and an award of $25.00 per day for
each day that the requested records were withheld.
Sykes claims
that the records were withheld from June 26, 1999 until September
2, 1999.
The Commonwealth responded, in its Motion to Dismiss,
by asserting that the Office of the Attorney General had directed
Sykes to clarify his ambiguous request, and showing that the
records had been promptly mailed following such clarification.
Kemper claims that this establishes that Sykes was not entitled
to any relief in the circuit court.
Sykes argues that, pursuant to Department of
Corrections v. Courier-Journal, Ky. App., 914 S.W.2d 349 (1996),
the duty of the courts is to give effect to the laws created by
the General Assembly.
This Court must give effect to all
provisions of the Open Records Act as written, as prior opinions
have made clear.
Unnecessary litigation regarding admittedly
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public documents can only be avoided by requiring compliance with
the plain language of the statute.
The Act does not permit
dismissal of an action, or disallowance of sanctions, costs or
attorney’s fees, simply because the records were eventually
supplied to the complainant.
KRS 61.882(5) provides for an award
of costs, attorney’s fee, and even a fine, should the trial
court, in the exercise of its discretion, so rule.
Although
Sykes has the burden before the circuit court of proving any harm
suffered due to the agency’s failure to respond to his request,
as stated in
Craig v. Kentucky State Board for Elementary and
Secondary Educ., Ky. App., 902 S.W.2d 264, 266 (1995), the fact
that he received the records three months later does not entitle
the agency to dismissal of his complaint.
For the foregoing reasons, we reverse the trial court’s
dismissal of the action, and find that Kemper violated the
Kentucky Open Records Act in failing to promptly respond to
Sykes’ request as required by law and as directed by the Attorney
General.
This case is remanded for a determination of what
financial sanctions, if any, are applicable under the facts of
this case.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
George William Sykes, Pro Se
Central City, Kentucky
Robert L. Chenoweth
Patricia Bausch
Chenoweth Law Office
Frankfort, Kentucky
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