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 actions of the Frankfort Career Development Center (FCDC) relative to the February 23, 2001 open records request of John Hatchett for:
Copy of Adjustment Hearing Tape (s) dated 2-20-01 and 2-21-01; Tape No. 073 - Side A. Copy of Parts I and II of the Disciplinary Report Forms 02-01-01 and 02-02-01.
On February 27, 2001, Captain Kara Martin, Custodian of Records, denied Mr. Hatchett's request, stating:
2-26-01 - I/M Hatchett already has copies of disciplinary reports # s 2-01-01 and 2-02-01 & the part II's to each one. Hatchett received the Part II's at adjustment hearings. Corrections policies & procedures do not require the hearings to be tape recorded. On advice of General Counsel, an audio tape of the hearings is not constitutionally mandated and is therefore denied.
In a supplemental response directed to this office following commencement of Mr. Hatchett's appeal, Jennifer Hatcher, Staff Attorney, Department of Corrections, elaborated on Ms. Martin's response. In her response, Ms. Hatcher stated, in relevant part:
I have reviewed the above-referenced appeal, as well as a copy of John Hatchett's open records request and Captain Kara Martin's response. Pursuant to Corrections Policies and Procedures (CPP) 15.6 Section E (1), an inmate is to be provided a copy of the Disciplinary Report against him at the end [of] the disciplinary hearing and upon completion of the disciplinary report forms. Mr. Hatchett signed the bottom portion of the Disciplinary Report Form part II which states he received a copy of the report and that he had been advised that he could appeal to the warden. Captain Martin denied his request for a copy of the disciplinary report on the ground that he had been given a copy of the report following his disciplinary hearing.
Captain Martin also denied Mr. Hatchett's request for the audio tape recording of the disciplinary hearing against him. Although not constitutionally mandated, it is the policy of the Department of Corrections to make audio tape recordings of disciplinary hearings and to provide inmates access to these audio tapes. CPP 15.6. However, Captain Martin could not locate the audio tape of Mr. Hatchett's hearing. It is possible that this particular tape has since been recycled. Since this tape does not exist, it cannot be provided to Mr. Hatchett.
We are asked to determine whether the actions of FCDC were in violation of the Open Records Act. For the reasons that follow, we conclude that the agency's response was in substantial compliance with the Act and prior decisions of this office.
With respect to duplicative requests for documents, the Attorney General has stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
Here, as in our earlier decisions, unless Mr. Hatchett can explain the necessity of reproducing the same records that have already been released to him, such as loss or destruction of the records, we can see no reason why FCDC must satisfy the same request a second time.
Addressing next the request for the audio tape, this office has long recognized that a public agency cannot afford a requester access to a record which it does not have or which does not exist. 97-ORD-103; OAG 83-111.
In the instant case, the Department, in its supplemental response, attached an affidavit from Ms. Martin in which she states that after receipt of Mr. Hatchett's request, she attempted to locate the audio tape and could not find it. She further stated it appeared that the tape had been recycled. Accordingly, we find the Department's response that it could not provide a copy of the requested record on the ground that the tape could not be found and no longer exists, was proper and consistent with provisions of the Open Records Act.
However, these facts may represent a records management and retention issue. In 1994 the Open Records Act was amended. The Act 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]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
The Department of Libraries and Archives has advised that the requested audio tapes are not scheduled records subject to a retention schedule. Absent an applicable retention period, no impropriety would result from recycling the tapes for further use.
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.
John Hatchett, # 85770Frankfort Career Development CenterP.O. Box 538Frankfort, KY 40602-0538
Captain Kara MartinFrankfort Career Development CenterP.O. Box 538Frankfort, KY 40602-0538
Eileen BurtonRecords CoordinatorFrankfort Career Development CenterP.O. Box 538Frankfort, KY 40602-0538
Jennifer HatchettStaff AttorneyOffice of General CounselDepartment of Corrections2439 Old Lawrenceburg RoadFrankfort, KY 40602