Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter is before the Attorney General on appeal from the Eastern Kentucky Correctional Complex's (hereafter EKCC) response to Mr. Steve Baker's open records request to inspect certain records at the Complex.
On August 1, 1995, Mr. Baker requested to inspect the following records:
Memorandums issued within the Last two weeks. They concern "Educational Good-time", which was denied for those students who received two Associate Degrees from Lees College last Fall Semester, (12-21-94). One memorandum has the Names of these students denied. The other was sent to School Director John Barnes office. Which stated why the Educational Good-time was denied. I request one copy of each Memorandum. Dates of the Memorandums: (7-10-95 to 7-27-95) Somewhere around or between these Dates.
On August 22, 1995, Mr. Baker received his request back with a handwritten response from Mr. John Barnes, Education Department, EKCC, stating "Memo's not in Education office. Please send request thru records as per CC Underwood." On August 23, 1995, Mr. Baker resubmitted the same request to Ms. C. C. Underwood, Records Department, EKCC.
On August 24, 1995, Ms. Michelle Nickell, Records Custodian, EKCC, denied Mr. Baker's request on the basis that the "Documents are not contained in Institutional file."
In addition to the above, Mr. Baker also included a copy of an Inmate Grievance he filed with EKCC on August 14, 1995, in which he sought (1) to get a clarification of whether his request for Educational Good-time, which he had on June 23, 1995 filed for, had been approved or denied and (2) to have his open records request complied with.
Mr. Baker indicated that on August 24, 1995, the grievance was sent back to him with a copy of a memorandum, dated July 24, 1995, from C. C. Underwood through Don Battles, Deputy Warden/Programs to All Concerned, re: Denial of Educational Good Time. However, he states that the Memorandum had nothing to do with his open records request.
On September 5, 1995, Mr. Baker submitted a letter of appeal to this office in which he states:
As of this date there has been no effort to comply with my request. Therefore, I feel that the intent of K.R.S. 61.870 to 61.884 is being subverted as defined in K.R.S. 61.880(4). I ask at this time with this written request that you use the adjudicatory process as if the record(s) request in the attached hereto request has been denied and issue a written opinion concerning my request to inspect said record(s).
For the reasons which follow, it is the conclusion of this office that the response of EKCC was inconsistent in part and consistent in part with the Open Records Act. From the documentation provided this office, it appears that the agency's response was procedurally deficient to the extent that it did not respond to Mr. Baker's request in writing within three working days after its receipt as is required by KRS 61.880(1).
As to the substantive issue, we conclude that the EKCC did not subvert the intent of the Open Records Act in responding to Mr. Baker's request. Mr. Barnes, in the EKCC's initial response to the request, informed Mr. Baker that the Education Department did not have the memorandums and referred him to the Records Department, as directed by KRS 61.872(4). The Records Custodian responded that the requested documents were not in the Institutional file. From the documentation and information provided this office, the responses of the Educational Department and the Records Department were that it did not have the requested memorandums. This office has long recognized that a public agency cannot furnish access to records which it does not have. 94-ORD-41.
Accordingly, it is the decision of this office that the EKCC acted consistent with and did not subvert the intent of the Open Records Act in responding to Mr. Baker's open records request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.