Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from Eastern Kentucky Correctional Complex's denial of inmate James M. Perry's September 15, 1997, request for a copy of the memorandum relating to inmate clothing orders which was posted on the bulletin board in the canteen. On September 17, 1997, Linda S. Hill, records officer at EKCC, responded to Mr. Perry's request. She advised him as follows:
There are no memos. 1. There is no shipping and handling added. 2. 6% tax is Ky State Law.
In a letter sent to this office following Mr. Perry's appeal, Ms. Hill elaborated. She explained that the disputed memorandum did in fact exist on the date of his request, but that it was written over a year ago and inadvertently left on the bulletin board. The memo has since been removed because it was superseded by Correction's Policy and Procedure 2.1.
The question presented in this appeal is whether Eastern Kentucky Correctional Complex properly denied Mr. Perry's request on the basis that "there are no memos. " We find that E.K.C.C. improperly denied the request.
Mr. Perry requested a copy of a memorandum relating to inmate clothing orders posted on the canteen bulletin board. His request was dated September 15, 1997. Ms. Hill denied his request on September 17, stating that "there are no memos. " Upon receipt of notice that Mr. Perry had appealed EKCC's denial of his request, Ms. Hill advised the Attorney General that the disputed memorandum did exist when it was requested. It was inadvertently left on the board, but has since been removed. She did not indicate on what date the memorandum was removed, or if it had been destroyed.
Along with his letter of appeal, Mr. Perry submitted two dated and one undated signed statements from other inmates in which they stated that they saw and read the disputed memorandum on the canteen bulletin board on September 25, 1997, ten days after Mr. Perry made his request and eight days after Ms. Hill indicated that "there are no memos. " This is the only "proof" presented to this office relative to the issue of whether the memorandum was posted on the date Mr. Perry made his request. In the absence of any proof to the contrary, we must accept the truthfulness of these statements.
E.K.C.C. erred in failing to provide Mr. Perry with a copy of the memorandum identified in his request. The facility is not relieved of its duty to provide full access to a nonexempt public record by virtue of the fact that the policy set forth in that record has been superseded by a new policy, and the information contained in it is therefore outdated. Although Ms. Hill would certainly have been entitled to advise Mr. Perry of the change in policy when she released the record to him, her statement that "there were no memos" was misleading and inaccurate.
Upon receipt of payment for reproduction, Eastern Kentucky Correctional Complex should furnish Mr. Perry with a copy of the memorandum identified in his September 15 request if it still exists.
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 61880(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.