Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center violated the Open Records Act in denying Ricky A. Duff's request for a copy of "Kentucky Administrative Regulation . . . Section 6:080 [sic] (need[ed] for [his] legal work)" on the basis of KRS 197.025(2). For the reasons that follow, we affirm NTC's denial of his request.
On appeal, Mr. Duff emphasizes that he is a pro-se litigant, and that he must obtain a copy of the cited administrative regulation "in order to prepare a proper defense." He asserts that the requested regulation is a nonexempt public record to which he is entitled since "the legal library at Northpoint does not maintain a copy of this legislation for the inmates to review or research." It is his belief that Northpoint's "administrative department" does maintain a copy of the regulation, and that the refusal to furnish him with a copy of the regulation constitutes "deliberate hindrance and retaliation. "
In a supplemental response directed to this office following commencement of Mr. Duff's appeal, Department of Corrections Staff Attorney Tamela Biggs amplified on NTC's position. She explained:
Lt. Gifford [open records coordinator at Northpoint] appropriately cited KRS 197.025(2) as the authority for withholding the requested regulation. KRS 197.025(2) states that the department does not have to comply with a request unless it is for a record which pertains to the inmate or offender making the request. 501 KAR 6:080 is an administrative regulation which merely lists by title and number the policies and procedures which have been filed by Northpoint Training Center with the Legislative Research Committee; therefore, it does not pertain to Mr. Duff.
In addition, Ms. Biggs observed:
In discussing the appeal with Lt. Gifford, she stated that the institution does not have a copy of the administrative regulation, a fact that was not included in her response. If an agency does not have a document, it has a duty to so advise the individual making the request. See 99-ORD-150. A public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. Absent KRS 197.025(2), NTC still could not provide Mr. Duff a copy of the regulation, as it does not have a copy.
We affirm NTC's denial of Mr. Duff's request.
As amended in 1998, 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 any 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 construing this provision, the Attorney General has recognized that KRS 197.025(2) "limits an inmate's access to records which do not pertain to him or her," and that while there may be occasions when we are presented with a close question as to the relation of a record to an inmate, in general we defer to the correctional facility's judgment. To do otherwise, we have concluded "would open the door to . . . tenuous claims thereby subverting the intent of [KRS 197.025(2)]." 98-ORD-150, p. 3. "Whatever hardship [an inmate] believes this statute works upon him, he is nevertheless restrained from inspecting, or receiving copies of, records that do not pertain him." 99-ORD-161, p. 2. As a result of the 1998 amendment to KRS 197.025, inmates no longer have "the same right to inspect public records as any other person," at least as that right relates to records in the custody of the Department of Corrections and facilities under its jurisdiction. NTC's denial of Mr. Duff's request, which was fully authorized by law, therefore cannot be characterized as a hindrance or retaliation.
Moreover, NTC cannot furnish that which it does not possess. As Ms. Biggs correctly notes, in numerous open records decisions through the years this office recognized that a public agency cannot afford a requester access to a record that it does not have in its custody or possession. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We further commented that it is not our duty to investigate in order to resolve a dispute between a requester and an agency relative to the agency's custody or possession of a record. OAG 86-35.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there have been occasions when, under the mandate of this statute, the Attorney General has requested that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, 1 we do not believe that this appeal warrants additional inquiry. NTC apparently does not maintain a set of the Kentucky Administrative Regulations in its inmate law library, or elsewhere within the facility. Because the question Mr. Duff raises is factual, and not legal, in nature, our inquiry ends here. NTC's response was consistent with the Open Records Act insofar as it cannot make available a record that it does not possess. In closing, we remind Mr. Duff that open record appeal is not an appropriate forum for registering a complaint concerning the adequacy of an inmate law library, or for vindicating his rights as a pro-se litigant in a case pending before the Court of Appeals.
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 proceedings.
Distributed to:
Ricky A. Duff, #125003Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Kathy GiffordNorthpoint Training CenterP.O. Box 479Burgin, KY 40310
Tamela BiggsDepartment Of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400
Footnotes
Footnotes
1 See, for example, 97-ORD-116 (holding that city's failure to establish an adequate basis for the nonexistence and unavailability of public notification for bids and signed contracts raises a records management issue that warranted additional inquiry).