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 the Shelby County Detention Center, formerly the Shelby County Jail, violated the Open Records Act in the disposition of former inmate Mark Clifford's request for records verifying the dates of his incarceration in the Center. For the reasons that follow, we find that the Center did not violate the Act in denying Mr. Clifford's request, insofar as it cannot make available for inspection records which do not exist or are no longer in its custody, but that its failure to retain inmate records beyond five years raises records retention issues that may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes.
In denying Mr. Clifford's request, Administrative Assistant Silvia Ashby advised that according to the Center's records, Mr. Clifford was not incarcerated in the Shelby County Jail or the Shelby County Detention Center. In a supplemental response directed to this office following commencement of Mr. Clifford's appeal, Jailer Bobby Waits stated that "records from the Shelby County Jail and the Shelby County Detention Center only date back to 01-01-1995." A review of the Shelby County Detention Center confirmed that the Center possessed no records verifying the dates of Mr. Clifford's incarceration.
The Shelby County Detention Center does not assert that the records Mr. Clifford requested are not public records for purposes of the Open Records Act. Nor does the Center rely on any of the exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (l), in denying the request. Instead, the Detention Center states that the records are no longer available because they are over five years old. Obviously, the Shelby County Detention Center cannot furnish Mr. Clifford with records that no longer exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 96-ORD-41. Our decisions in open records disputes are generally limited to two questions: whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. The Shelby County Detention Center's failure to produce a nonexistent record does not constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Our review of the Records Retention Schedule County Model-Jailer, a copy of which is enclosed, indicates that the retention period for an inmate record/folder may exceed five years. If, in fact, such records fall within Series L2751, they must be "retain[ed] permanently." In light of this discrepancy, we are obliged to refer this matter to the Department for Libraries and Archives for further review.
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.