Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in its responses to various open records requests by Kevin P. Crooks' for production of agency records. Because the transactions giving rise to Mr. Crooks' two separate appeals raise common questions of law, they are consolidated for purposes of administrative adjudication. For the reasons that follow, we affirm the actions of the Department of Corrections.
In his first appeal, Mr. Crooks asked this office to review the Department's responses to his series of requests, dating from August 27, 2001 and October 17, 2001, for production of the following documents:
a. Daily time cards from January 1, 1994 through October 1995 for Robert Flint for the print shop at Luther Luckett Correctional Complex;
b. Department of Corrections policies and procedures for the retention and/or destruction of records;
c. Copies of post orders from January 1, 1990 through December 31, 2000;
d. Copies of conflict reports and documents regarding segregation orders relating to particular inmates; and
e. An advisory opinion regarding the Department of Corrections' compliance with its obligations under the Open Records Law.
In its responses, the Department denied the request for the daily time cards because they had been destroyed and no longer existed; the request for the post orders was denied under authority of KRS 61.878(1)(l) and KRS 197.025(1), stating that disclosure of the orders would constitute a threat to the security of the institution, control of the inmates, and the public at large and KRS 197.025(6), which holds that records of the Department which address the security and control of inmates and penitentiaries shall not be accessible to the public or inmates; the request for conflict records for certain inmates was denied pursuant to KRS 61.878(1)(l) and KRS 197.025(1), in that release of this information would constitute a threat to the inmate, other inmates, correctional staff, or the institution; the request for "dispute" records was denied as the Department had no records titled "disputes"; requests for detention records such as write-ups, disciplinary actions, transfer authorization forms, and classification and reclassification forms of the identified inmates were provided at $ 0.10 per page.
After receipt of Mr. Crooks' letter of appeal, Brian A. Logan, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In his response, Mr. Logan advised that the Department had no independent policies regarding the retention or destruction of records and, thus, could not be provided as no such records exist. In addition, Mr. Logan advised, in relevant part:
In responding to this appeal, it should be noted that Attorney Crooks represents the Estate of Robert Flint in United States District Court in ongoing litigation against the Department of Corrections and various current and former employees of the Department. In that case, the Judge entered a stay of all discovery and each of the open records request were made during the period in which the court's order has been in effect. (Attachment I) Each record request Counsel Crooks appeals from, all pertains to his litigation against the Department of Corrections. Although the Department has responded to various requests, these open records requests flaunt the authority of the Court by attempting to go behind the civil rules of procedure. Since the stay of discovery covers the production of documents, the Department does not have to respond to Counsel Crooks request.
In this regard, Mr. Logan further advised that Mr. Crooks had sought relief from the stay, but it had been denied.
In his second appeal, Mr. Crooks asked that we review the Department's responses to his requests, dating from May 15, 2001 through July 17, 2001, for production of all requests relating to the parole records of inmate Joe Harold Tolle.
In responding to these requests, the Department advised that it did not maintain a "parole file." It further advised that the agency was not required, under the Open Records Act, to respond to blanket requests for information and requested that Mr. Crooks describe the documents he sought with reasonable particularity in order for the agency to identify the specific documents requested and to determine if they were exempt from inspection.
In response to a subsequent request, the Department provided Mr. Crooks with 117 pages of records from Mr. Tolle's files, but denied access to records obtained or prepared by a probation and parole officer in discharge of official duty as exempt from inspection under KRS 439.510, in tandem with KRS 61.878(1)(l). It also denied access to correspondence received regarding prospects of parole, housing, and classification as exempt from inspection under KRS 61.878(1)(i) and (j), and FBI reports, under authority of 28 U.S.C. § 534, in tandem with KRS 61.878(1)(k). Mr. Crooks was advised that an individual could request a copy of his own FBI rap sheet pursuant to 28 CFR §§ 16.32 & 16.33.
In addition, the Department explained that psychological/psychiatric evaluations would be considered part of Mr. Tolle's medical records and could not be released without the express written consent of Mr. Tolle or upon a properly issued Subpoena Duces Tecum. Mr. Crooks was advised that Mr. Tolle's medical records were stored at the Kentucky State Reformatory and was provided with that agency's address and telephone number.
We are asked to determine whether the Department's responses to Mr. Crooks' requests violated the Open Records Act. For the reasons that follow, we conclude, that because Mr. Crooks and the Department are parties to a lawsuit in which discovery has been stayed by Court Order and the records requested pursuant to the Open Records Act pertain to the litigation, the Department could properly deny requests for agency records under authority of the Court's protective order.
It is the Department's view that Mr. Crooks' requests to obtain the documents under the Open Records Act "flaunt the authority of the Court by attempting to go behind the civil rules of procedure. "
This office has acknowledged that the Open Records Act should not be used as a substitute for discovery. 96-ORD-138. We have also recognized that the Act in no way supersedes a protective order, or other court ordered seal of confidentiality, when a public agency is properly before a court as a party to litigation. 94-ORD-19.
In its Order, dated October 19, 2001, the United States Magistrate Judge ordered a complete stay of discovery of all records in the Department's institutional and central office file on inmate Joe Tolle, not previously disclosed, during the pendency of the interlocutory appeal.
Since Mr. Crooks, as plaintiff's counsel, and the Department are parties to the litigation in which the Order staying all discovery during the pendency of the interlocutory appeal was issued and because the documents in question appear to come within the purview of the stay order, the parties are required to obey the stay of discovery order out of deference to the judicial process. 96-ORD-65. The Department, in compliance with the court's stay order, could properly deny access to the requested records that are protected from discovery by the court's Order. Accordingly, we conclude the denial of Mr. Crooks' requests did not constitute a violation of the Open Records Act. 01-ORD-95.
Because it is unclear whether all the records requested are covered by the Order staying discovery, we address the various Department responses that are the subject matter of these appeals.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. With regard to the request for the daily time cards, policy and procedure records for retention and/or destruction of records, and "parole record," Mr. Crooks was advised that no such records exist. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The Department properly discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
KRS 61.878(1)(l) provides:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 197.025(1) provides that no person, including any inmate under the jurisdiction of the Department of Corrections, shall have access to any records "if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person."
KRS 197.025(6) provides that the "policies and procedures of administrative regulations of the department which address the security and control of inmates and penitentiaries shall not be accessible to the public or inmates. "
The Department denied Mr. Crooks access to the post orders and the conflict records under authority of KRS 197.025(1) and KRS 197.025(6). This office is not in a position to second guess the Department or to conclude that it abused its discretion on the basis of the facts as presented in this appeal. 94-ORD-40. Accordingly, we conclude the Department properly relied upon KRS 197.025 in denying access to these requested records.
KRS 439.510 makes confidential:
All information obtained in the discharge of official duty by any probation and parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board or cabinet.
Requests for records in Mr. Tolle's files prepared by a probation and parole officer in the discharge of his official duties, would be exempt from disclosure and could be properly denied pursuant to KRS 439.510 and KRS 61.878(1)(l). 96-ORD-147; OAG 88-14. Accordingly, it is the decision of this office that the Department's denial of the request for copies of records prepared by probation and parole officers was proper and in accord with provisions of the Open Records Act.
KRS 61.878(1)(k) authorizes the nondisclosure of:
All public records or information the disclosure of which is prohibited by federal law or regulation.
28 U.S.C. § 534 prohibits the Department's disclosure of a FBI rap sheet to anyone, including the individual who is the subject of the rap sheet. 00-ORD-85. Accordingly, we conclude the Department properly denied access to FBI reports from Mr. Tolle's file.
Finally, the Department advised Mr. Crooks that psychological and psychiatric evaluations were part of an inmate's medical records and could not be released without the written consent of the inmate or a properly issued subpoena duces tecum. The Department did not deny this request. It informed the requester as to the procedures required in order to receive those types of records and further provided him with the address and telephone number where the records were maintained, as mandated by KRS 61.872(4). Thus, we conclude the responses of the Department as to these records were consistent with the requirements 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.