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 the complaint of Thomas D. Craig that the Kentucky State Penitentiary failed to timely respond to his open records requests.
In his letter of appeal, dated September 13, 1999, Mr. Craig states that his September 5, 1999 request for copies of walk logs showing inmates on restricted privileges was received by the records coordinator at the penitentiary on September 7, 1999 and as of that date [September 13<th>] he had not received a response to his request. Mr. Craig also indicated that in another request, dated September 3, 1999, he had asked for receipts for how much the penitentiary spends on cassette tapes for court call records and did not receive his response until September 13, 1999.
After receipt of Mr. Craig's letter of appeal, dated September 13, 1999, 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. In her response, Ms. Biggs stated:
Mr. Craig has alleged that the institution fails to respond on the fifth business day as required by KRS 197.025(7). A request which [was] received on the 7<th> would be responded to by the 14<th>, not the 13<th> as stated by Mr. Craig. The time begins to run the day following receipt of the request, which in this case, would be 8 September. Discounting Saturday and Sunday, the response would be due on Tuesday the 14<th>.
Mr. Craig states that he requested copies of the walk logs showing inmates on restricted privileges. Jack Wood apparently misplaced the original request, as a thorough search of the Unit Office and other appropriate areas failed to turn up the document. Mr. Wood notified Mr. Craig by memorandum dated 13 September that if he still wished to receive the requested documents; he must resubmit his request. (See Exhibit 1, attached hereto) On 14 September, Mr. Craig requested said logs. The request was logged in by both Deputy Warden Haeberlin and Mr. Waller on the 16<th>. (See Exhibit 2, attached hereto) Unit Administrator Bobby Waller responded on the 22<nd>, noting that the requested documents did not contain any restrictions for Mr. Craig; therefore, he was not entitled to receive the requested documents. While the response was factually correct, it was deficient in part, due to Mr. Waller's failure to cite KRS 197.025(2).
As to the request of 3 September, Ms. Adams responded on 10 September, which was the fifth business day following receipt of the request. Again, while the factual basis for the denial is sound, the response is deficient due to the lack of the citation to KRS 197.025(2). The legislative intent behind this statutory amendment was to preclude an inmate from receiving copies of records that do not pertain to him. In order to obtain copies of non-exempt public records, the inmate's name must appear on or within the face of the document. On 22 September, Mr. Craig was notified by Deputy Warden Haeberlin that $ 2.50 was being deposited to his account pursuant to 99-ORD-159. The $ 0.24 tax initially charged had been previously refunded.
The issues raised in this appeal are whether the penitentiary's responses to Mr. Craig's open records requests were timely and whether the agency's responses to his request for copies of the walk logs and receipts for how much the penitentiary spends on cassette tapes was proper. For the reasons that follow, we conclude that the agency timely responded to the requests and that its responses to the requests for the walk logs and receipts of the cost of the tapes were substantively correct, but procedurally deficient in failing to cite the statutory exception authorizing the nondisclosure of the requested records.
In 96-ORD-207, this office held that the time, for calculating the running of the time in which an agency's open records response is due, begins on the day after receipt of the request. The information provided indicates that, calculating the penitentiary's response date from the day after they were received, the agency timely responded to the requests within five business days as required by KRS 197.025(7).
In its responses to the requests for the walk logs and the receipts of the cost of the cassette tapes, the penitentiary indicated that Mr. Craig's name did not appear on the requested records and that he was not entitled to records of other inmates or records that did not pertain to him. These responses were substantively correct, but procedurally deficient in failing to set forth the specific statutory exemption that authorizes the nondisclosure.
KRS 197.025(2) 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.
Pursuant to KRS 197.025(2), Mr. Craig is prohibited from inspecting records which do not pertain to him. Because the records he requested did not pertain to him, he is not entitled to inspect or receive copies of them. 98-ORD-150, p. 3. We therefore conclude that the penitentiary properly denied Mr. Craig's requests.
As noted above, the penitentiary's responses were procedurally deficient in failing to identify the correct statute authorizing nondisclosure of the requested records, namely, KRS 197.025(2). In addition, the penitentiary failed to cite the exception to public inspection, codified at KRS 61.878(1)(a) through (l), through which KRS 197.025(2) is incorporated into the Open Records Act.
KRS 61.880(1) provides that "an agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record." In this case, the relevant exception is KRS 61.878(1)(l) which authorizes nondisclosure of records made confidential by enactment of the General Assembly. A properly worded denial must include citation to both KRS 61.878(1)(l) and KRS 197.025(2), and a brief explanation of how these statutes apply.
The penitentiary has acknowledged these procedural deficiencies and has indicated that steps have been taken to ensure procedural compliance with the Open Records Act in the future.
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.