Opinion
2023-CA-0933-MR
08-16-2024
MATT E. MINIARD APPELLANT v. FAYETTE COUNTY SOIL CONSERVATION DISTRICT (FCCD) OPERATIONS MANAGER HEATHER SILVANIK; AG DEVELOPMENT BOARD SUPERVISOR CHRISTOPHER ROWE, TREASURER, COMMITTEE MEMBER; FAYETTE COUNTY CONSERVATION DISTRICT AKA FCCD; SUPERVISOR ALLEN CARTER, VICE CHAIR, COMMITTEE MEMBER; SUPERVISOR ANGIE QUIGLEY, MEMBER; SUPERVISOR BARBARA BENTLEY, SECRETARY, COMMITTEE MEMBER; SUPERVISOR BETTY BARTON, MEMBER; AND SUPERVISOR JOHN JAMES, CHAIR, HUMAN RESOURCE COMMITTEE MEMBER APPELLEES
BRIEFS FOR APPELLANT: Matt E. Miniard, pro se Lexington, Kentucky BRIEF FOR APPELLEE: D. Barry Stilz Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE DIANE MINNIFIELD, JUDGE ACTION NO. 22-CI-02453
BRIEFS FOR APPELLANT: Matt E. Miniard, pro se Lexington, Kentucky
BRIEF FOR APPELLEE: D. Barry Stilz Lexington, Kentucky
BEFORE: CALDWELL, CETRULO, AND ECKERLE, JUDGES.
OPINION
CALDWELL, JUDGE
Matt E. Miniard ("Miniard") appeals from the dismissal of his Open Records appeal. We affirm.
FACTS
Miniard was an elected supervisor on the Fayette County Soil Conservation District ("the District"). Miniard emailed several open records requests to the District's custodian of records, Operations Manager Heather Silvanik, in April 2022. The records custodian claimed to have sent back a response saying Miniard could make an appointment to come inspect the records during regular office hours. Miniard claims he never received this response.
Miniard reported not receiving a response to his open records request to the Office of Attorney General ("OAG"). The District filed a response with the OAG, attaching copies of an email and PDF letter allegedly sent to Miniard in response to his open records request. Miniard denied receiving the response to his open records request and suggested it was never sent.
The OAG issued an Open Records Decision ("ORD"), stating the OAG could not find the District failed to respond to the open records request based on the documents filed by the District. But, the OAG noted, Miniard disputed a response to his open records request was sent or received, and the OAG could not resolve this factual dispute. The OAG advised Miniard of his right to file an appeal of its decision in circuit court.
Miniard filed his appeal in Fayette Circuit Court. Miniard asked the circuit court to set aside KRS 61.872(3)(b) and to order copies of the requested records be mailed to Miniard at the expense of the District and/or its records custodian. Miniard named several individuals as defendants (including other District supervisors) as well as the District itself. He also requested the circuit court order disclosure of some supervisors' addresses.
Kentucky Revised Statutes.
The defendants filed a motion for dismissal or for summary judgment. Following further briefing and a hearing, the circuit court granted the motion for dismissal or summary judgment by written order. The circuit court also stated that other motions were now moot and that its order was final and appealable. Miniard then filed this appeal. Further facts will be discussed as needed.
ANALYSIS
Miniard's Briefs Fail to Comply with Rules of Appellate Procedure
Miniard's briefs fail to comply with our Rules of Appellate Procedure (RAP) in important respects. For example, Miniard's appellant brief does not contain a preservation statement identifying if or how issues were preserved for appeal by raising them to the circuit court. See RAP 32(A)(4). Also, Miniard does not include specific citations to the circuit court record in his appellant brief. See RAP 32(A)(3)-(4).
This is not the first time we have noticed Miniard's failure to follow these appellate briefing rules. We once again leniently decline to strike his briefs or dismiss the appeal or to review solely for palpable error resulting in manifest injustice under CR 61.02. But we reiterate that pro se litigants must follow appellate briefing rules and can suffer consequences for failure to do so. See, e.g., Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (dismissing appeal). So, Miniard should not expect further leniency for future appeals. For future reference, we direct Miniard's attention to appellate briefing checklists and our basic appellate handbook available at our court website, https://www.kycourts.gov/Courts/Court-of-Appeals/Pages/default.aspx (last accessed Jul. 11, 2024).
See Miniard v. Silvanik, No. 2022-CA-0881-MR, 2023 WL 6770788, at *1 (Ky. App. Oct. 13, 2023) (unpublished) (noting Miniard's failure to provide a preservation statement or specific citations to record but leniently proceeding to review appellate issues without imposing sanctions). In January 2024, Miniard's appellant brief was struck for failure to follow these same rules and Miniard was ordered to file a corrected appellant brief with a proper preservation statement and citations to the record in Miniard v. Rowe, No. 2023-CA-1001-ME.
See RAP 31(H)(1) ("A brief may be stricken for failure to substantially comply with the requirements of these rules.").
Kentucky Rules of Civil Procedure.
And though we decline to strike Miniard's briefs or review solely for palpable error, we limit our review to considering those arguments which are clearly preserved for our review and for which Miniard provides citations to supporting legal authority. See Prescott v. Commonwealth, 572 S.W.3d 913, 919 (Ky. App. 2019) (limiting review "to those portions of Prescott's arguments supported by careful and correct citation to the record" despite declining to strike pro se appellant's brief or to dismiss the appeal for failure to comply with appellate briefing rules).
With these parameters in mind, we consider the merits of Miniard's appeal of the circuit court's dismissal of his open records appeal.
Circuit Court Properly Dismissed Case as Miniard Was Not Entitled to the Relief He Requested in the Circuit Court
We review the circuit court's grant of the motion for dismissal for failure to state a claim or for summary judgment under the non-deferential de novo standard of review. See Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010); Richmond v. Hunt, 596 S.W.3d 103, 105 (Ky. App. 2019). Nonetheless, we discern no error in the circuit court's dismissing Miniard's open records appeal since Miniard was not entitled to the relief he requested in the circuit court regardless of any factual issues about whether the alleged email open records response was sent or received.
Despite any arguments in Miniard's appellate briefs that he is entitled to monetary damages or other relief, the only relief Miniard requested in his notice of appeal of the ORD filed in circuit court was for the circuit court to set aside KRS 61.872(3)(b) and order copies of records be mailed to him at no cost to him and for the circuit court to order disclosure of several individuals' addresses. And Miniard failed to cite to the record in his appellate briefs to show where he raised the issue of any entitlement to monetary damages or other relief to the circuit court elsewhere in the record. See RAP 32(A)(3)-(4). Therefore, we decline to consider whether Miniard was entitled to any other relief beyond that requested in the document initiating the case in the circuit court (which Miniard referred to as the notice of appeal of the ORD). See Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) (declining to reach unpreserved issue not raised to circuit court in an open records appeal).
Before we address Miniard's specific requests for relief in the circuit court, we address whether individuals may properly be named defendants in open records actions.
Open Records Suits May Only be Brought Against Agencies, Not Individuals
"[T]he General Assembly intended suits based on violations of the Open Records Act, including the time provisions of KRS 61.880(1), to be brought against the state agencies themselves and not against the individuals employed by those agencies." Taylor v. Maxson, 483 S.W.3d 852, 856-57 (Ky. App. 2016). As Kentucky's open records statutes (including KRS 61.882) expressly limit those seeking records inspection to suing and obtaining relief from agencies rather than individuals, one cannot state a claim for Open Records violation against individuals. Id. Thus, the circuit court properly dismissed the individual defendants from this Open Records case.
Miniard Was Not Entitled to Receive Copies of Records in the Mail at the Expense of the District or any Individual Other than Himself
As the District points out, Miniard was required to be a Fayette County resident to be a supervisor for the District. KRS 262.240(4)(a). Miniard does not dispute that he is a resident of Fayette County, where the District's records are kept. Miniard has not asserted he agreed to pay for the cost of copying and mailing records to him, either. Instead, he has steadfastly argued the records he seeks should be mailed to him at the expense of the District or its records custodian. But clear statutory language does not call for the result desired by Miniard - as Kentucky's open records statutes do not establish a right to receive records in the mail at no expense to the requestor but simply a right (subject to certain exceptions) to inspect public records.
KRS 61.872(1) provides that public records should be open for inspection, subject to exceptions stated in the Open Records Act (KRS 61.870 through KRS 61.884). KRS 61.872(2) states Kentucky residents have a right to inspect public records and sets forth a procedure for applying to inspect such public records.
KRS 61.872(3) addresses how Kentucky residents may inspect public records. It states:
(3) A resident of the Commonwealth may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he or she precisely describes the public records which are readily available within the public agency. If the resident of the Commonwealth requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The statute clearly provides for an opportunity to inspect records during the agency's regular office hours. And despite any factual dispute about whether Miniard received an email or other response from the District after emailing his open records requests, Miniard was aware of this opportunity. Miniard simply declined the opportunity to view records at the office - asserting in court hearings and filed documents that he did not wish to inspect records at the office due to a difficult interpersonal relationship with the records custodian.
Instead, Miniard asked the circuit court to set aside KRS 61.872(3)(b) and order the District to send records to him in the mail at the expense of the District or its records custodian. But KRS 61.872(3) only provides for mailing requested records if the requestor lives or has his/her principal place of business outside the county where the records are and "upon receipt of all fees and the cost of mailing." Again, Miniard has not disputed that he lives in Fayette County where the records are kept and has never agreed to pay for the fees and cost of mailing records. Under these circumstances, KRS 61.872(3) provides that Miniard should be afforded an opportunity to inspect records during regular office hours -but not that he is entitled to receive records in the mail at no cost to him.
KRS 61.872(3)(b) also requires that the requestor "precisely describes the public records which are readily available within the public agency" when other statutory requirements for mailing records to the requestor are met. We decline to address any issues about whether Miniard precisely described the records he requested or whether these records were readily available in the District as these issues are irrelevant to our resolving this appeal.
Furthermore, despite stating his desire to avoid going into the office to copy records and generally opining that it would be better for the District or the records custodian to bear the expense of mailing records, Miniard's appellate briefs advance no arguments supported by citations to legal authority for setting aside the clear statutory language of KRS 61.872(3). See RAP 32(A)(4) (requiring that appellate briefs contain arguments "conforming to the statement of points and authorities, with ample references to the specific location in the record and citations of authority pertinent to each issue of law . . ." (emphasis added)). And it is not our role as an appellate court to research or construct arguments for him. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
So, we discern no error in the circuit court's refusal to set aside KRS 61.872(3) nor in its determination that, based on the statute, Miniard was not entitled to receive requested records in the mail at the expense of the District or its records custodian. Next, we address Miniard's request for a court order requiring disclosure of certain individual supervisors' addresses.
Miniard Was Not Entitled to a Court Order for Disclosure of Individuals' Addresses
As the Appellees point out, Miniard did not request individual supervisors' addresses in his open records requests sent to the District's records custodian in April 2022. So, the issue of whether he was entitled to such addresses was not properly before the circuit court in Miniard's open records appeal. After all, Miniard had not sought this information in his open records request so there was no denial of a request for such information before he filed the open records appeal. See Utility Management Group, LLC v. Pike Cnty. Fiscal Court, 531 S.W.3d 3, 12 (Ky. 2017) ("[T]he inspection right exists and fully vests when a person first seeks and is denied public records which are statutorily subject to the Open Records Act.").
Furthermore, even if Miniard had sought these addresses in his open records requests, a request for individuals' addresses is a not a request to inspect public records but rather a request for personal information. Miniard is not entitled to disclosure of the individuals' addresses under the Open Records Act - which recognizes a right to inspect public records but not a right to have an agency gather and provide information upon request. See KRS 61.870(2); In re: Christie Bluhm/Kentucky State Police, Ky. Op. Atty. Gen. 16-ORD-237, 2016 WL 6781907, at *2 (Nov. 7, 2016) (stating that open records statutes provide only for inspection of records and do not require agencies to "provide or compile specific information to conform to the parameters of a given request"). The circuit court did not err in declining to order disclosure of individuals' addresses in this open records appeal.
"While we are not bound by opinions of the Attorney General; this court can, however, afford them great weight." Louisville Metro Dep't of Corrections v. King, 258 S.W.3d 419, 421-22 (Ky. App. 2007). See also Eplion v. Burchett, 354 S.W.3d 598, 603 n.6 (Ky. App. 2011) (noting appellate courts often find the OAG's open records decisions persuasive as: "Our review of various OAG opinions regarding open records requests reveals that the OAG's handling of such matters is routinely carefully considered, clearly stated, and based upon a correct understanding of the law.").
In short, the circuit court correctly determined that Miniard was not entitled to the relief he sought in the Open Records appeal filed in circuit court regardless of any factual dispute about whether the alleged email open records response was sent or received by Miniard. Further arguments in the parties' briefs not addressed in this Opinion have been determined to lack merit or relevancy to our resolving this appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM the circuit court judgment.
ALL CONCUR.