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 actions of the Kentucky State Penitentiary (KSP) relative to three open records made by James Harrison on July 16, 1999.
In the first request, Mr. Harrison requested:
[1] A copy of all documents related to the investigation in which the undersigned, James Harrison, was placed in detention during the month of May, 1999 in connection with threats being made against the undersigned; 2) to include all documents in which the undersigned's name appears and in which undersigned's name was mentioned; 3) to include all investigative reports; 4) disposition and/or final outcome of that investigation; 5) any other investigation report that reflects undersigned's name; 6) all classification documents of review pertaining to that investigation.
On July 22, 1999, James W. Potter, Internal Affairs, KSP, made the following response to the first request: (1) I am unaware o[f] any such documents (2) None (3) None (4) None (5) None (6) Will have to contact Classification for these documents.
After receipt of Mr. Harrison's letter of appeal, Tamela Biggs, Staff Attorney, Department of Corrections, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, provided this office with a response to the issues raised in Mr. Harrison's appeals. Ms. Biggs addressed each of the three appeals separately. Each response will be set forth in the discussion of each respective appeal which follows.
Addressing the first request, Ms. Biggs advised:
Mr. Potter stated that he was not aware of any such documents and was not aware of any threats being made against Mr. Harrison. Mr. Potter then stated that no documents existed which would fulfill sections (2), (3), (4), or (5). As to any "classification documents of reviews pertaining to that investigation," Mr. Potter referred the inmate to Classification, as that office would be the custodian of any such records in existence. Request (2) is vague and overly broad as written ("all documents in which undersigned's is mentioned.") In order to properly respond to the request, it needs to be narrowed and more specific. In a phone conversation with Mr. Potter and Deputy Warden Haeberlin, Mr. Potter reiterated that the documents requested do not exist. The Department cannot produce what it does not have.
In the second request, Mr. Harrison requested:
[1] during the month of June, 1999 a copy [of] the document which reflects the name(s) of the person found in possession of a gold chain belonging to the undersigned, James Harrison; 2) a copy of any other document in connection with the undersigned's chain, such as a) any chain of custody form; b) evidence log(s); c) any investigative report(s); d) Final disposition documents; e) any other documents associated with the chain of undersigned; 3) Copies of any results of any polygraph exams; 4) also, any of these documents that may exist throughout April, May and July, 1999; and 5) Any disciplinary report(s) issued to the person found in possession of undersigned's chain.
On July 22, 1999, Mr. Potter made the following response to the second request: (1) No such document exists (2) None (3) None (4) None (5) None.
Addressing the second request, Ms. Biggs advised:
Again, no such documents exist, therefore, none can be produced. Polygraphs were not administered. The Department cannot produce what it does not have.
In the third request, Mr. Harrison requested:
[1] A copy of any documents for the months of April, May, June, and July in which the undersigned's name has been mentioned to inmate Donnie Mills; 2) to include tape conversation in which undersigned's name was mentioned or referred to; 3) including the adjustment committee's hearing on April 26, 1999; 4) Part One & Part Two of the disciplinary report dated 4/22/99 and 4/25-28/99; 5) any of and all classification documents of Donnie Mills reflecting my name; 6) Internal Affairs reports bearing my name and/or mentioned by said inmate; 7) any other administrative staff report; 8) any investigative reports in which undersigned's name was mentioned or referred to.
On July 22, 1999, Mr. Potter made the following response to the third request: (1) None (2) None (3) IA. has no such record must obtain from Adj Committee (4) Same as 3. (6) None (7) None.
Addressing the third request, Ms. Biggs advised:
Mr. Potter does not have custody of any of the requested documents. Tapes do not exist. "Any other administrative staff report" is vague and overly broad; the inmate must be more specific. Internal Affairs is not the custodian of any documents generated by the Adjustment Committee. The inmate was told that the record must be obtained from that committee. According to the information given this office, the committee has not received a request from inmate Harrison. Neither the Department or Mr. Potter can produce what it does not have.
We are asked to determine whether the actions of the KSP relative to Mr. Harrison's three open records requests were consistent with the requirements of the Open Records Act. For the reasons that follow, we find that the actions of the agency were in substantial compliance with the Act.
This office has consistently recognized that a public agency cannot afford a requester access to a document that does not exist or which it does not have in its possession or custody. 96-ORD-62; 93-ORD-51. This issue is common to all three appeals. We conclude that the KSP's responses that indicated that certain of the requested documents did not exist and, therefore, could not be provided, were proper and consistent with the Open Records Act and prior decisions of this office.
Addressing the other issues in the first appeal, Ms. Biggs stated that Mr. Harrison's request for "all documents in which the undersigned's name appears and in which the undersigned's name was mentioned," was vague and overly broad and needed to be more specific, in order for the agency to properly respond. We agree. In 99-ORD-14, this office expressly held:
[A] request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and . . . generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
Thus, we conclude that this response was proper and consistent with prior decisions of this office. The request should be more specific in describing the particular documents sought to enable the agency to identify, locate, and retrieve the records.
Next, in response to Mr. Harrison's request for any "classification documents of reviews pertaining to that investigation," the KSP advised that requests for classification records should be made to Classification, as that office would be the custodian of any such records.
As to this issue, we find that the KSP erred in its response which directed Mr. Harrison to resubmit his request to the Classification office and in its response in the third request to resubmit his request to the Readjustment Committee.
The term "public record" is defined as "all books, papers, maps, photographs, cards, tapes, discs, diskette recordings, software, or other documentation, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
Although Mr. Potter, Internal Affairs, was the custodian of records relating to an investigation within the penitentiary, he could not selectively respond to only those requests for records over which he had personal custody and control and require Mr. Harrison to resubmit his requests to other departments within the institution. See, 99-ORD- 121, p. 10. The requested records are within the custody and control of the KSP, on whose behalf he responded. The proper course, in our view, would be to confer with the Open Records Coordinator, the Classification department, and the Adjustment Committee department in formulating the proper response to Mr. Harrison's request and reroute each portion of the request to the appropriate department that maintained the requested records, rather than requiring him to resubmit his request to the different departments. Accordingly, the KSP should timely respond to these portions of Mr. Harrison's requests, rather than require him to resubmit separate requests.
In response to the records requested in Mr. Harrison's second request, KSP explained that none of the records requested existed and it could not produce records it did not have. For the same reasons set forth above, this was a proper response and not a violation of the Open Records Act.
Addressing Mr. Harrison's third request, KSP explained that a request for records generated by the Adjustment Committee should be made to that office and that Internal Affairs was not the custodian of those records. For the same reasons explained above, this response was improper. As to other records requested, KSP explained that none of the records requested existed and it could not produce records it did not have. For the same reasons set forth above, this was a proper response and not a violation of the Open Records Act.
Finally, Mr. Harrison asserts that he was threatened by staff at the institution that if he pursued his open records requests, he would be placed in segregated confinement. This office has previously commented that attempts to frustrate access to public records would contravene the spirit and intent of the Open Records Act, however the Act does not empower this office to address the issue of alleged agency retaliation against individuals who exercise their rights under that law. 94-ORD-108.
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.