Eplion v. Burchett, 2009–CA–001741–MR.

• Decision Date: 04 November 2011
• Docket Number: No. 2009–CA–001741–MR.,2009–CA–001741–MR.
• Citation: 354 S.W.3d 598
• Parties: Wayne Allen EPLION, Appellant, v. Joe BURCHETT, Appellee.
• Court: Kentucky Court of Appeals

354 S.W.3d 598

Wayne Allen EPLION, Appellant,

v.Joe BURCHETT, Appellee.

No. 2009–CA–001741–MR.

Court of Appeals of Kentucky.

Nov. 4, 2011.

Wayne Allen Eplion, Sandy Hook, KY, pro se.

C. Phillip Hedrick, Catlettsburg, KY, for appellee.

Before ACREE and STUMBO, Judges; LAMBERT,¹ Senior Judge.

OPINION

ACREE, Judge:

The issues on appeal in this open records dispute are twofold. First, we must ascertain whether the circuit court properly denied Wayne Allen Eplion's petition for a declaration that he is entitled to production of records regarding his stay in the Boyd County Detention Center. Second, we must determine whether the circuit court's denial of Eplion's demand for assessment of a monetary penalty against various detention center officials (hereinafter collectively referred to as “the officials”) is supported by the law. Finding merit in Eplion's claim against the Boyd County Detention Center under Kentucky's Open Records Act, but also finding that he waived the only ground for reversing the penalty ruling, we affirm in part, reverse in part, and remand for entry of an order consistent with this opinion.²

I. Facts and procedure

Pending trial for two charges of sodomy, Eplion was held in the Boyd County Detention Center from April 2001 to September 2002. He was convicted and transferred to the Little Sandy Correctional Complex for completion of his sentence. Eplion then apparently filed an unsuccessful collateral attack of his conviction by way of Kentucky Rule of Criminal Procedure (RCr) 11.42, although it is not clear from the record precisely when this happened. Wishing to mount another collateral attack on his conviction, Eplion filed with the Boyd County Detention Center an open records request dated December 13, 2006, seeking production of a series of records.³ Eplion believed the records would show that his trial counsel's representation had been deficient, in part, because the attorney failed to visit often enough to adequately prepare for trial.

Eplion did not receive a response from the detention center within the statutorily-prescribed three days, and he appealed the matter to the Office of the Attorney General (OAG) on December 29, 2006. The Boyd County Detention Center's response to Eplion's claim before the OAG, made through its attorney, was as follows:

In discussing the matter with Boyd County Detention Center [personnel] these records that have been requested were generated and existed during a prior administration. They are either unaware of any records being in existence or are not presently able to locate the records being requested....

[C]onsidering these records were the records of a prior constitutional office holder I believe he would be the proper custodian of the records if he were still subject to compliance rather than the current administration. Nevertheless, in demonstrating good faith, I have instructed the Detention Center to locate all records pertaining [to Eplion's request]....

We hope the foregoing is satisfactory. Our specific response is that the Detention Center and present jailer are not the custodian of the records requested, and, frankly, I am not sure who the custodian is or would be. Also, again, some of these records probably don't exist and never have while others would have been kept in the normal course of business. We are trying to locate any that we can for Mr. Eplion on himself.

Ky. Op. Atty. Gen. 07–ORD–020, 2007 WL 530212 (Ky.A.G.), pp. 1–2.

The OAG determined that the detention center had committed a number of procedural and substantive violations of the Act and that the above response evinced a misunderstanding of the obligations of the agency and its officials. In particular, the OAG concluded the detention center had failed to respond to Eplion's request in a timely manner, KRS 61.880(1); had failed to provide him with a detailed explanation of why officials were unable to render a decision regarding production of the records within the three-day period, KRS 61.872(5); had failed to set a date certain when Eplion would be able to review the records, KRS 61.872(5); and had failed to maintain the records as required by KRS 171.680(1) and KRS 64.830.

The OAG informed the officials that the records requested belonged not to the past or present jailers as individuals, but to the agency, and that they had an obligation to maintain the records amassed by their predecessors. 07–ORD–020, 2007 WL 530212 (Ky.A.G.), p. 6 (citing 76 C.J.S. Records § 2 (“[a] written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office, and not his private property”)). As a result of the OAG's order, detention center officials were required to complete training with the Kentucky Department for Libraries and Archives regarding their duties of recordkeeping and disclosure under the Act.

Following disposition of the administrative action, Eplion filed in the Boyd Circuit Court an original action against various officials of the detention center, citing the authority of KRS 61.882. In his complaint, Eplion demanded a declaration that he was entitled to the records he had requested in December 2006. He also sought assessment of some $1.2 million in penalties for the officials' failures to comply with open records laws.

In a document filed on April 11, 2008, the officials responded that the records were not available and/or not in jailer's possession because they were

apparently removed, destroyed[,] or lost during the transition between jailers which even the Court can recall was a difficult transition and at a time when it would not be surprising to find that the new incoming jailer, Joe Burchett, Respondent herein could not find things that should have been left behind as records of the facility as opposed to records of the office holder.

In a hearing conducted in May 2009, the officials represented that they had made efforts to locate the records but were unable to do so. They further offered to contact the previous jailer to ascertain whether he knew what had become of the records.

The circuit court ruled that Eplion was not entitled to a declaratory judgment because “the records do not exist and therefore cannot be produced[.]” The circuit court also found that even if those records did exist, and if they were provided to Eplion, he would not be successful in mounting a collateral attack of his conviction. Finally, the court sub judice declined to impose a monetary penalty upon the officials, finding, “an ongoing fine would not provide any incentive to produce [the records] since they cannot be produced.”

Eplion appealed the matter to this Court. On appeal, he again asserts that he is entitled to relief pursuant to the Kentucky Open Records Act, namely, production of records from his stay in the Boyd County Detention Center and assessment of penalties against the officials who failed to comply with the Act.

II. Standard of review

Whether an agency has complied with the disclosure requirements of the Open Records Act is a question of law subject to de novo review. See Hahn v. University of Louisville, 80 S.W.3d 771, 773 (Ky.App.2001).

The circuit court's findings of fact which underlie its legal conclusions will be reversed only if they were clearly erroneous. Kentucky Rule of Civil Procedure ( CR) 52.01. “[C]learly erroneous means not supported by substantial evidence. Substantial evidence is evidence which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable persons.” Hughes v. Kentucky Horse Racing Authority, 179 S.W.3d 865, 871 (Ky.App.2004) (citations and quotation marks omitted).

Upon a finding that the denial of records was in willful disregard of the Act, it is within the circuit court's discretion to assess penalties against the offending agency. KRS 61.882(5). We will reverse the denial of Eplion's request for penalties only if the circuit court abused its discretion. Id.

Finally, we must address the deficiencies of Eplion's brief on appeal. The officials object in their brief to Eplion's failure to cite to the record, and request that we review his appeal for manifest injustice only. In recent opinions, this Court has been inclined to reduce the standard of review on appeal, even for a party appearing pro se, for lack of compliance with the technical rules of appellate procedure. We note, however, that the decision whether to employ such measures is wholly within our discretion. See Hollingsworth v. Hollingsworth, 798 S.W.2d 145, 147 (Ky.App.1990).

Exercising that discretion, we decline to grant the officials' request for a reduced standard of review for a number of reasons. First, the record is neither large nor unwieldy, and we can readily find all the information we need with little difficulty, despite the deficiency of Eplion's brief. Second, the officials' brief is hardly the model of compliance—its “COUNTERSTATEMENT OF POINTS AND AUTHORITIES” does not comply with CR 76.12(4)(d)(ii), it contains only cursory citation to the record, in violation of CR 76.12(4)(d)(ii), and the brief's appendix contains no extruding tabs, as required by CR 76.12(4)(d)(v). We see no reason to punish the appellant for deficiencies in his brief but ignore those of the appellees. Finally, the outcome of this appeal would be the same even under the manifest injustice standard. Reducing the standard of review would yield no benefit to the officials or, more importantly, to the administration of justice.

III. Declaratory judgment

Two issues on this matter have been raised in Eplion's brief: (1) whether the circuit court's factual determination that the records do not exist was proper and (2) whether the circuit court correctly concluded that Eplion was not entitled to a declaratory judgment. We will address each matter in turn.

At the hearing, the officials presented evidence that, despite having diligently searched the jail on...