Request By:
Ms. Adeline Huettig
Records Supervisor
Luther Luckett Correctional Complex
P.O. Box 6
LaGrange, Kentucky 40031
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Keith Phillips has appealed to the Attorney General your denial of his request to inspect an "Authorization for Transfer" form. He specifically describes what he wanted to inspect as follows: "Transfer authorization written on 10/1/84 to KSR SEG. UNIT and approved (on file pending) and any other transfer authorization pending and written to date."
In your reply to Keith Phillips' request you advised him as follows:
"Authorization for transfer form you requested is not in the Records Department. Records do not get this authorization until the day before the transfer to another institution, therefore, I cannot send the requested material. "
In his appeal letter to this office, Keith Phillips maintains that his request to inspect the "Authorization for Transfer" form was denied but the reason given is not correct. He alleges that you knew the requested document was approved by Steve Berry at the Central Office and that the document is located in the files in the Program Services Office at the Luther Luckett Correctional Complex.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that you acted in conformity with the Open Records Law, KRS 61.870 to KRS 61.884, when you informed the requesting party that you could not supply the requested material as it was not in your possession or custody.
The issue here is not one of whether the document in question is reviewable since, apparently, the Corrections Cabinet concedes that in virtually all cases an "Authorization for Transfer" form is subject to inspection. The problem here is where the form is, who has it, and what the Records Supervisor knew about the status and location of the document when she received the request for inspection.
Obviously even where a public record is involved, the custodian of public records cannot make available for inspection that which is not in her possession or within her custody. KRS 61.872(3) does provide, however, that, "If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him."
In an attempt to learn about the handling and processing of an authorization for transfer form, I talked by telephone with you and Ms. Carol Shirley, Deputy Warden for Program Services, on November 13, 1984. It appears from the telephone conversations in question that the authorization for transfer proceeding is initiated at the Luther Luckett Correctional Complex by certain members of the institution's staff. The Records Supervisor is neither involved in the proceedings nor advised of them although the inmate involved is notified. The authorization for transfer form is approved by several persons at the Luther Luckett Complex including the Deputy Warden for Program Services and the Warden. The form is then sent to Steve Berry of the Corrections Cabinet in Frankfort. He either approves or disapproves the transfer paper and then returns it to the Deputy Warden for Program Services at the Luther Luckett Complex. If the inmate is to be transferred the authorization for transfer form is delivered to the Records Supervisor shortly before the transfer is to be made.
Thus, you, as the Records Supervisor at the Luther Luckett Correctional Complex, have no part in the handling and processing of the authorization for transfer form and you only receive the form shortly before the transfer is actually to be made. The only additional information that you could have supplied to Keith Phillips would have been to tell him that if an authorization for transfer proceeding had been initiated concerning him, the form would ultimately have been returned to the Deputy Warden for Program Services. However, Keith Phillips' letter to this office requesting an appeal implies that he knew it would be returned to that particular prison official. The facts indicate that when you received the request of Keith Phillips you would only have known that you did not have the form he requested and that it could have been in Frankfort or back at the office of the Deputy Warden for Program Services or somewhere en route between the two places.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5).