Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department for Libraries and Archives violated the Open Records Act in responding to Harry M. Chapman's March 1, 1998, request for "the Record Description and Analysis on the Kentucky Parole Board document 'Parole Certificate' issued to Harry Chapman prison number 115298 on June 26, 1997." Mr. Chapman asked that if "the document has been destroyed ? the [Department] provide [him] with a copy of the request to have the 'Parole Certificate' destroyed, and any document which reflects the certificate was destroyed. " For the reasons that follow, we find that the Department fully complied with the Act.
On March 3, 1998, James A. Nelson, Commissioner of the Department for Libraries and Archives responded to Mr. Chapman's request. Mr. Nelson furnished Mr. Chapman with a copy of the Record Description and Analysis for the records series titled Parole Worksheet. He explained that the schedule for the Parole Board does not include Parole Certificates as a separate record because they are created from information contained in the Parole Worksheet record series. Mr. Nelson advised Mr. Chapman to contact the Offender Records Section of the Department of Corrections if he wished to obtain a copy of his parole certificate.
In a follow-up letter to this office, Mr. Nelson elaborated:
You will note that inmate Chapman requested a Records Description and Analysis (D&A) form for a Parole Certificate , which he indicated was issued to him on June 26, 1997. As we noted in our original response, the D&A form is completed when it is necessary to describe a particular record type for inclusion in a records retention schedule. Parole Certificates , as a separate record type, are not included in the schedule for the Parole Board, as the certificates themselves are output documents of extracted information, intended for the inmate who is being paroled, and not retained as separate documents by the Parole Board. Thus, no D&A form for them exists.
As we noted in our earlier response, these certificates are created from information contained in the records series entitled Parole Worksheet (series 04483). A D&A form for this series in enclosed in this letter and was sent to inmate Chapman. You will note in item # 32 of the D&A form, Disposition Instructions, that when a Parole Certificate is issued, the Parole Worksheet is transferred to the Department of Corrections, Offender Records Section, for inclusion in the Offender Record (series 02982), which serves as the master criminal history file for an inmate in the state's correctional system. While the Parole Certificate is not retained by the Parole Board, it is possible that a copy of this output document could be retained with the Parole Worksheet as among several file elements of the Offender Records . In our earlier letter, we advised inmate Chapman that he should contact the Offender Records Section, Department of Corrections, to secure a copy of his Parole Certificate , as that office would now hold the source record, the Parole Worksheet , from which this output document was generated and from which a copy could be made.
Mr. Nelson reiterated that the Department for Libraries and Archives responded to Mr. Chapman's request in a timely fashion, explained why the record he requested was nonexistent, and suggested how he might obtain a copy of his parole certificate.
It is the opinion of this office that the Department complied in all respects with the Open Records Act in responding to Mr. Chapman's request. The Department properly advised Mr. Chapman that the record he requested does not exist, and offered a reasonable explanation for the nonexistence of the record.
In a recent open records decision, the Attorney General observed:
This office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents ? for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records.
97-ORD-116, p. 1, 2. Thus, in 94-ORD-140, we affirmed the Ohio County Sheriff's Department's denial of a request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation. Conversely, in 97-ORD-103, 97-ORD-116, and 97-ORD-146, we held that because the public agencies failed to offer even a minimal explanation for the nonexistence of records which were apparently required by law, we could not determine if the agencies met their statutory burden of proof under KRS 61.880(2)(c).
This appeal is more closely akin to 94-ORD-140 insofar as the Department offered a reasonable explanation for the nonexistence of the D&A form for a parole certificate. As Mr. Nelson explained, parole certificates are not included in the schedule for the Parole Board because they are not retained as separate documents by the Board but are issued to the inmate who is being paroled. In addition, Mr. Nelson furnished Mr. Chapman with the name and location of the most likely source for records relating to his parole certificate, and thus discharged any remaining duties under KRS 61.872(4). We find no error in the Department for Libraries and Archives' response to Mr. Chapman's 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.