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 action of the Kentucky State Penitentiary (KSP) relative to the July 11, 1999 open records request of Thomas D. Craig, an inmate at the institution, to inspect:
incident reports from the C/O in charge of the walk on 7-7-99 at 4:00 p.m., ch 3-11RR & 12R, also I want reports from the Sgt., Lt., Captain, and Assistant Unit Director and Mr. Henderson also a C/O. I want the assessment from both nurses on [scene]. This info pertains to me because I was affected by the situation which occurred.
By letter dated July 15, 1999, L. J. Conger, Records Office, KSP, responded to Mr. Craig's request, advising:
Mr. Craig, I received your request for a copies of incident reports dated 7-7-99 on July 15, 1999. Unfortunately, as of this date, they have not been received in this office, nor have they been placed on your institutional file. Due to the expiration of the time periods required for the appeal of an incident report per policy, I expect to receive the reports at a later date.
The Deputy Warden of Security's Office maintains information reports. Their office may also have the incident reports that you are requesting. Please submit another request to Deputy Warden Haeberlin's Office and direct it to the Deputy Warden of Security for those documents that pertain to you.
Also note, the Medical Department maintains assessments by their personnel. Please submit another request to the Medical Department for any medical documents that pertain to you.
By letter dated July 18, 1999, Mr. Craig submitted another request, addressed to Warden Parker/Haeberlin, in which he complains that KSP rules require inmates to send their open records requests to the records department and they are to send it to the custodian of the records requested. He requests the KSP explain why his request was not sent on to the proper department. In addition, Mr. Craig stated that, under 197.025(2), an inmate is entitled to inspect an institutional record if the record pertains to him. He argued that he was entitled to a copy of the incident report of the fire which occurred on the walk because he was on the walk when it occurred and had medical problems, which he reported to the Lieutenant, Sergeant, and C/O on duty.
In his letter of appeal, Mr. Craig states he had yet to receive a response to his July 18, 1999 request.
After receipt of the letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. Addressing Ms. Conger's response, Ms. Biggs explained:
Inmate Craig has misconstrued Ms. Conger's response of 15 July 1999. Ms. Conger had not received copies of the requested documents at the time the request was received. As of the date of my conversation with her regarding this appeal (12 August), she still had not received copies of the reports. If an inmate receives a write-up, etc., it shall be placed in his inmate file. Ms. Conger's response was referring to the fact that if such documents existed, she had not received them and they had not been placed in the inmate's file. She was not, as inmate Craig insinuates, saying that the document had to be placed in the inmate's file. Ms. Conger was merely stating the facts as they existed. She was not misconstruing the KRS 197.025(2). Ms. Conger did not have custody of the records and stated that fact. She further informed the inmate of the actions he must take and the individuals to contact in order to obtain any non-exempt public records.
As to this issue, we conclude that the response was consistent in part and inconsistent in part with the Open Records Act. As the agency has explained, the requested records had neither been received in the records office nor placed in Mr. Craig's institutional file. This office has consistently recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. 93-ORD-51. This portion of the response was proper and in accord with the Act and prior decisions of this office.
However, although Mr. Craig was advised by Ms. Conger that the Deputy Warden of Security's Office maintained information reports and may have the incident reports and the Medical Department may have medical records that pertained to him, he was told he should resubmit open records requests to the Open Records Coordinator and the Medical Department, respectively.
In her response to this office, Ms. Biggs stated the following procedures are to be followed by inmates in making open records requests:
Pursuant to Corrections Policies and Procedures 6.1 - Open Records (CPP), all inmates are required to forward open records requests through institutional mail to the designated Open Records Coordinator. CPP 6.1 sets forth the responsibilities of the Open Records Coordinator as follows:
Although Ms. Conger, Records Office, was the custodian of records in her department, she could not selectively respond to only those requests for records over which she had personal custody and control and require Mr. Craig 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 she responded. The proper course, in our view, would be to confer with the Open Records Coordinator, and possibly the Deputy Warden of Security's Office, and the Medical Department, in formulating the proper response to Mr. Craig'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. 99-ORD-147. Accordingly, the KSP should timely respond to these portions of Mr. Craig's requests, rather than require him to resubmit separate requests.
Next, we address the KSP's denial of Mr. Craig's request under authority of KRS 197.025(2). That statute provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from an inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which pertains to that individual.
In 98-ORD-150, an inmate appealed the Western Kentucky Correctional Complex's denial of his request for copies of maintenance work orders for the dorm area where he lived, on the basis that the record did not pertain to him, thus precluding disclosure under KRS 197.025. The inmate argued that the records did relate to him because he was injured in the shower area of his dorm and there was a maintenance work order for that dorm area. He further argued that he needed the records as evidence in a Board of Claims action filed against the institution. In its response to the inmate's letter of appeal in 98-ORD-150, the agency explained the underlying intent of KRS 197.025(2):
In the past, inmates often requested records covering a myriad of topics (i.e., how much was spent per pig or cow for feed, the Warden's sewer bill or insurance coverage or vacation schedule, how much was paid for paint for the gym, the current home address of the inmate's victim - this information being open to the inmate under the "victim impact statement exception to the law against disclosure" ). The statutory change was made in response to these types of requests. A record must bear the inmate's name in order to be subject to disclosure under the new provision.
In 98-ORD-150, we found that WKCC's position was legally sound and held that because the maintenance work orders which he requested did not relate to him, he was not entitled to inspect or receive copies of them. The fact that the records may have been relevant to the inmate's pending Board of Claims action against the institution did not alter that conclusion.
The facts presented in this appeal are analogous to the facts presented in 98-ORD-150. Although Mr. Craig was affected by the fire on the walk, he was not mentioned by name in the reports. In her response, Ms. Biggs stated:
Neither an Extraordinary Occurrence Report or Officer's report were placed in this inmate's file. The only reports drafted as a result of the fire in three cellhouse on 8 July 1999 were filed in the institutional record of the inmate responsible for starting the fire. Other inmates were not mentioned by name in the reports. The reports simply state that "other inmates" living in the unit were checked by medical. If a report had been generated which included Inmate Craig's name, such report would have been available to him pursuant to KRS 197.025(2). That is not the case in this instance.
As in 98-ORD-150, we conclude that because the incident reports did not mention Mr. Craig by name, he is prohibited from inspecting records which do not pertain to him, under authority of KRS 197.025(2).
Finally, Mr. Craig states that on July 18, 1999 he submitted a letter to Wardens Parker and Haeberlin and as of the date of his letter of appeal had not received a response to his request. In her response to this issue, Ms. Biggs indicated that a review of the Warden's inmate correspondence file failed to yield such a document. If neither the warden nor the deputy warden received the letter of July 18, 1999, then, obviously, neither they nor the institution could respond to that letter.
In response to Ms. Biggs' letter, Mr. Craig enclosed a copy of the letter to Warden Parker/Haeberlin and a copy of a July 18, 1999 open records request form addressed to "KSP" in which he again requested the record sought in his July 11, 1999. In the disposition section of the form, dated August 3, 1999 and signed by Bobby Waller, as Custodian of the records, the request was again denied. In his denial, Mr. Waller stated:
Portions of your request are somewhat vague and overly broad; however, your request is denied pursuant to KRS 197.025(2) as amended 15 July 1999. Your request for incident reports and reports from medical about the fire are denied as your name does not appear on or in the reports. The intent behind the amendment requiring the document to "pertain to you" was that the file or document contain or bear your name. The records being requested name and apply to other inmates, not you, as intended by the statute.
We have no reason to doubt the statements that a review of the Warden's inmate correspondence file failed to yield such a document, but encourage the agency to ensure efforts are made to eliminate unnecessary delays, if any, in providing timely access to requests for public records. As to Mr. Craig's July 18, 1999 open records request, we conclude that the agency's August 3, 1999 response was substantively correct for the same reasons set forth above which addressed the response to the July 11, 1999 request. However, the failure to timely respond to the July 18, 1999 request within five business days, as required by KRS 197.025(7), constituted a procedural violation of the statute.
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.