Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert 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 response of the Department of Corrections to Roger Dale Shelton's open records request for the following documents from his institutional file:
Documentation Custody Time Credit, OJT Performance Report, FBI Sheet, Pre-Parole Progress Report, Parole Board Action Sheet, Parole Violation Warrant, Status Change, Affidavit for PV Warrant, Initial Interview Form, Notice of Preliminary Revocation Hearing, Client Profile, Employment Placement Verification Report, Home Placement Verification Report, Detainers, Letters from Police, Letters from Courts, Letters from Prosecuting Attorneys, Reclassification Forms, Results of PPEH (sic), Progressive Incarceration Plan, Vocational Program supplemental Progress Report, All Certifications, Academic Achievement Certificate, Transfer Recommendation and Authorization, All Documents Pertaining to Transfer to and from Marion Adjustment Center, and the like.
Responding on behalf of the Department, Geraldine Glass, Assistant Branch Manager, Offender Records, notified Mr. Shelton that some of the requested documents would be released to him upon payment of the requisite copying costs; denied access to certain other records, the release of which were prohibited by either federal or state statutes under KRS 61.878(1)(k) and (l), respectfully; affirmatively advised Mr. Shelton if specifically described records did not exist in his file; and responded to record requests which were vague, citing KRS 61.872(2) and informing him that he must describe the record by either the document title or by topic in order for the Department to identify the specific document being requested.
In his letter of appeal, Mr. Shelton states that the Department's response does not conform with KRS 61. Specifically, he argues that the denial of access to eleven documents because "this request is vague" was improper. In support of his argument, Mr. Shelton states he "used Corrections own form that describes the name of each form in an inmates file and if that document is either open, open to subject, or closed." He indicates that he described the documents he requested using Corrections own form and, thus, argues it was error to deny him these documents when he requested them by name as described by Corrections. Specifically, he cites to the "Employment Placement Verif[ication] Report [/Home Placement Verification Report" as being listed as open for inspection pursuant to Corrections' form. Mr. Shelton appeals the Department's responses that his descriptions of these eleven documents were vague.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Department and enclosed a copy of Mr. Shelton's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamala Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, provided this office, with a response to the issues raised in the appeal. A copy of the response was also provided to Mr. Shelton. In her response, Ms. Biggs, in part, stated:
Mr. Shelton contends that the response filed by Ms. Glass does not conform to KRS 61. Ms. Glass cites the specific relevant subsections of KRS 61 and KRS 439.510 which preclude the release of portions of his inmate file. She listed each document requested and proceeded to either deny access to said record under a specific statute or law or to ask for more information which would enable her to locate the desired document.
I reviewed the form attached as Exhibit 3 to Mr. Shelton's appeal and asked Central Office Offender Records staff to identify and/or authenticate the document for me. They were unable to do so. One staff member stated that this list of forms was compiled in 1980 or '81, to reflect the forms then in use. No one could recall who made the determination regarding whether the document was open or closed. Some of the records listed are no longer in use and the names of others have changed somewhat over time. Also, with the passage of KRS 439.510, some of the documents which were listed as "open to the subject" have subsequently been "closed."
Upon receipt of the instant appeal, I asked the staff to review same with the inmate's file to ascertain which documents were being requested, if such were in existence and contained in the file. Staff were unable to locate any documentation regarding custody time credits, on the job performance evaluations or reports, an "initial interview form," "client profile," "reclassification forms," "results of PPRH," "progressive incarceration plan," or "vocational program supplemental progress report. " The request for "all certifications, academic achievement certificate" is vague. What type of certifications is he seeking? I have also been informed that the file does not contain an "academic achievement certificate. " Is he referring to a diploma or vocational school certificate? " Ms. Glass stated that he needed to be more specific with these requests.
We are asked to determine whether the Department's responses conformed to the requirements of the Open Records Act. For the reasons that follow, we conclude that the responses were consistent with the Act.
To begin, the Department explained that the Corrections form which Mr. Shelton used to identify the records he wished to inspect and which indicated which records were "open," "closed," or "open to the subject," was an outdated form of the Department, which was believed to have possibly been used in the early 1980s. The form is no longer used or recognized by the Department. Moreover, some of the records used in the outdated form are no longer in use and the names of other forms have changed over time.
We conclude that this portion of the Department's response was consistent with the Open Records Act in that it adequately explained to Mr. Shelton why the form he used to fashion his request did not represent an accurate gage of the records in his file or those which were open for his inspection.
Secondly, the Department indicated that it had looked for records specifically identified by Mr. Shelton as "custody time credits, on the job performance evaluations or reports, an "initial interview form," "client profile," "reclassification forms," "results of PPRH," "progressive incarceration plan," or "vocational program supplemental progress report, " and had been unable to locate files which met those descriptions. This response was proper and consistent with the Open Records Act. The Attorney General has, on more than one occasion, recognized that a public agency cannot furnish a requester with records which do not exist or which it does not have in its possession or custody. See, for example, 93-ORD-51 and authorities cited therein.
As to Mr. Shelton's request for "all certifications, academic achievement certificate, " the Department responded that this request was vague; there was no "academic achievement certificate" in his file; and that Mr. Shelton needed to be more specific as to this request.
In OAG 85-88, this office expressly recognized that the failure of an inmate to identify specific documents in his institutional file precluded release of the documents in the file. We analogized an inmate's institutional file to a personnel file, insofar as both contain exempt and nonexempt documents, holding that a request to inspect a institutional file, like a request to inspect personnel files, "must specify the particular documents within such file to be inspected."
If a requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that a public agency conduct a search for such material. 95-ORD-68. The Department indicated it did search for an "academic achievement certificate" in Mr. Shelton's file and found no document by that title. Because Mr. Shelton did not identify the records he was seeking with sufficient specificity, the Department was unable to determine or locate the document he was seeking. Mr. Shelton may wish to resubmit his request and advise the Department with more precision as to what type record he is seeking in this regard. We conclude that this response conformed with the Open Records Act.
Finally, the Department denied Mr. Shelton's request for "Employment Placement Verifi[cation] Report [/Home Placement Verification Report]." In her response, Ms. Glass advised Mr. Shelton that "information obtained in the discharge of official duty by any probation and parole officer shall be privileged and exempt from inspection under KRS 61.878(1)(l) and 439.510."
Among the records excluded from the application of the Open Records Act are "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l). KRS 439.510 makes confidential:
All information obtained in the discharge of official duty by any probation or parole official ? Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet ? unless otherwise ordered by such court, board or cabinet ?
Thus, KRS 439.510, in tandem with KRS 61.878(1)(l), requires reports prepared by a probation or parole official in the discharge of official duty, to be kept confidential.
Moreover, with specific reference to the outdated Corrections form which indicated the "Employment Placement Verifi[cation] Report [/Home Placement Verification Report]." was open, Ms. Biggs explained in her response:
Pursuant to KRS 439.510 any information obtained by a probation or parole officer regarding the potential employment or placement of an inmate is precluded from disclosure unless such disclosure is to a court, board or hearing involved in the probation or parole function. At the time the list was compiled, the document, or portions thereof, may have been available to the inmate; however, at the current time, the document is withheld in its entirety, unless it is being released for the purposes set forth in the statute.
Accordingly, we conclude the Department properly relied upon KRS 439.510 in denying Mr. Shelton's request for the "Employment Placement Verifi[cation] Report [/Home Placement Verification Report]."
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.