Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Western Kentucky Correctional Complex violated the Open Records Act in its disposition of Richard D. Dikin's May 22, 2000, request for:
Any and all statutory documentation, administrative policy promulgated by the Department of Corrections, and administrative guidelines provided by and/or from the Kentucky State Police which are used to justify, determine, and supply "Registrant Information" which is gathered from the record of an inmate and through direct questioning prior to his release, and provided to Kentucky State Police[.]
For the reasons that follow, we affirm WKCC's denial of his request.
In a response dated May 26, 2000, WKCC records officer Ellen Cockerham refused to honor Mr. Dikin's request because it constituted a request for research to be performed rather than a request for inspection of reasonably identified public records. It was her position that the Open Records Act does not require public agencies "to perform such a service." In addition, Ms. Cockerham asserted, KRS 197.025(2) precludes disclosure of the requested records because they do not pertain to Mr. Dikin. Dissatisfied with this response, Mr. Dikin initiated an appeal on May 30, 2000.
On appeal, Mr. Dikin states that his appeal:
Stems from the fact that the application of an amendment to KRS 17.500, et seq., is being practiced against certain inmates who are preparing for release due to serve-out of their sentence. Not only does this practice violate the constitutional protections of applying legislation in an ex post facto manner, but there has not been any type of "fair notice" given of these charges made by the General Assembly. There has not been accepted or logged into the legal library at this facility any copy of SB 263, which has been purported to amend KRS 17.500 et seq.
Acknowledging that the requested documents do not contain his name, Mr. Dikin nevertheless asserted that KRS 197.025(2) does not bar disclosure because they will be used to prepare documents that do contain his name.
In a supplemental response directed to this office, Department of Corrections staff attorney Tamela Biggs reaffirmed the Department's view that a public agency is not obligated to conduct legal research in order to satisfy an open records request. She explained that legal materials are available to Mr. Dikin in the inmate law library, and that "he has adequate access to the library to perform the research himself . . . ." Ms. Biggs maintained that regardless of the absence of a duty to conduct legal research, or the applicability of KRS 197.025(2) to the disputed records, 99-ORD-35 and 99-ORD-181 firmly establish that legal materials found in an inmate law library do not fall within the definition of a "public record" codified at KRS 61.870(2), and therefore are not subject to the requirements of the Open Records Act. Based on these authorities, we find Ms. Biggs' argument highly persuasive and affirm WKCC's denial of Mr. Dikin's request.
KRS 61.870(2) defines public records as:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, 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. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
In 99-ORD-35 and 99-ORD-181, the Attorney General construed this provision to exclude reference materials located in an inmate law library, including statutes, administrative regulations, and case law. Acknowledging that such materials may technically qualify as "public records" because they are "in the possession of or retained by a public agency, " we nevertheless concluded that their disclosure "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " and therefore could not be characterized "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. We contrasted these library reference materials with public records that fall within the broad parameters of KRS 61.870(2), and that "reflect the daily functioning, programs, and operations of [a correctional facility or the Department of Corrections]." Id.; see also, 99-ORD-181.
As we noted in those open records decisions, this view comports with the position adopted by a number of federal courts relative to library reference material in the custody of a public agency. For example, in
SDC Development Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) the Ninth Circuit Court of Appeals held that library materials compiled by the National Library of Medicine did not constitute agency records because they did not "reflect the structure, operation, or decision-making functions of the agency . . . ." See also,
Baizer v. U.S. Department of Air Force, 887 F.Supp 225 (N.D. Cal. 1995) (computer database of United States Supreme Court decisions is library reference material that sheds no light on agency conduct so as to bring it within the reach of the Freedom of Information Act.) Although these decisions are not controlling, and are distinguishable on the basis of the nonexistence of a definition of the term "record" in the federal law, they suggest the reasonable limits of public access laws when the purpose for which those laws are created is not served by disclosure. We believe that the same reasonableness standard must be applied in the appeal before us.
Assuming for the sake of argument that reference materials housed in the inmate library are public records within the meaning of KRS 61.870(2), we find that WKCC is not obligated to conduct research by locating relevant statutes and regulations pertaining to the subject of Mr. Dikin's request in order to satisfy that request. In OAG 89-45, this office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. Additionally, it is unlikely that Mr. Dikin would be entitled to receive responsive statutes and regulations in light of KRS 197.025(2), vesting broad discretion in the Department of Corrections to deny inmate requests for records which do not pertain to them. To require disclosure of statutes and regulations to Mr. Dikin, and every other inmate housed by the Department of Corrections with a claim that those statutes and regulations relate to him, would defeat the purpose for which KRS 197.025(2) was enacted. 00-ORD-2.
We find no error in WKCC's response, and affirm the facility's denial of Mr. Dikin's request. In closing, we note that this office is not empowered to resolve questions relating to implementation of Senate Bill 263 (2000) and HB 455 (1998) in the context of an open records appeal. Such questions are beyond the scope of the Open Records Act.
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.