Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question in this appeal is whether the response of the Department of Corrections to the open records request of Roger Shelton violated the Open Records Act. We conclude that the agency's response was consistent in part and inconsistent in part with the requirements of the Act.
In a request, addressed to Jim Peck, Probation and Parole, Community Center, 130 East Washington St., Hartford, Kentucky, 42347, dated October 25, 2001, Mr. Shelton asked to inspect the following documents:
I am requesting a copy of the test results of the residue of marijuana and methamphetamine that were listed on my Notice of parole revocation. I also request a copy of the notification from the Ohio County Sheriff's Department notifying you as to where I had committed a violation of my parole. Lastly, I need a copy of the letter you told me you had received from an attorney in which stated I was being sued for the property that belonged to Kathy that was at my residence.
In his letter of appeal, dated November 14, 2001, Mr. Shelton indicated that as of that date, he had yet to receive a response to his request.
After receipt of Notification of the appeal and a copy of Mr. Shelton's 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 stated:
Officer Peck is a Probation and Parole officer stationed out of Owensboro, Kentucky. Apparently, Mr. Shelton sent his Open Records Request to the Ohio County Courthouse, the county in which Mr. Shelton was arrested. Officer Peck did not receive the Open Records Request until November 19, at which time he received notice of appeal. At the time of receipt, Officer Peck responded to Mr. Shelton's request. However, due to the fact that Mr. Shelton sent his request to the incorrect location, Officer Peck was unable to respond to Mr. Shelton's initial Open Records Request. For this reason, we feel Officer Peck should not be held accountable for the mistake made by inmate Shelton.
In a reply to Mr. Logan's response, Mr. Shelton indicated, that it may be true that his parole officer Mr. Peck was stationed out of the Owensboro office, but that, while he was on parole for nine months, he had always met with Mr. Peck at his office in Ohio County for his monthly report. Mr. Shelton enclosed with his reply, a copy of the response from Mr. Peck to his open records request, dated November 19, 2001, which stated:
Any testing was done by the OCSD [Ohio County Sheriff's Department]. Any info from them, needs to be requested of them. I do not have any letters. I was called by an Atty. I did not give them any info. You may want to write to the OCSD.
We are asked to determine whether the response of the Department of Corrections violated the Open Records Act. For the reasons that follow, we conclude that the response was procedurally and substantively consistent in part and inconsistent in part with the requirements of the Act.
KRS 197.025(7) requires that the Department respond in writing, and within five business days, after receipt of an inmate's open records request. The Department did not respond to Mr. Shelton's request, dated October 25, 2001, until November 19, 2001. Thus, its response was untimely. The Department explains that its response was untimely because Mr. Shelton sent it to the wrong address in Ohio County, rather than to his parole officer's office in Owensboro, Daviess County. Mr. Shelton claims that he always met with Mr. Peck in the Ohio County Courthouse for his monthly parole meetings and that was the proper address.
To the extent the request was sent to the wrong address, the Department's untimely response was mitigated by its timely response to Mr. Shelton's request after it received it. However, the Department's response does not say the request was not received at the office in the Ohio County Courthouse. If the request was received at the Ohio County office, the agency should have timely responded to Mr. Shelton either by notifying him as to the proper address to submit his request or by making arrangements to forward the request to the appropriate custodian for a timely response. KRS 61.872(4) and (5). We urge the Department to review its policies to insure that future open records requests are timely responded to and in compliance with the requirements of the Open Records Act.
Addressing the substantive issues, the Department, in its response, informed Mr. Shelton that it did not have the test results or letters that he requested and advised him that any testing would have been run by the OCSD and further advised that any requests for those records should be made to that agency. This response was in substantial compliance with KRS 61.872(4), which requires that, "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. Thus, we conclude this response did not violate the Open Records Act.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Department advised Mr. Shelton that it did not have the records he requested or that they did not exist. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
However, the Department's response does not appear to respond to that portion of Mr. Shelton's request that asked for "a copy of the notification from the Ohio County Sheriff's Department notifying you as to where I had committed a violation of my parole. " Accordingly, if it has not done so, the Department should immediately respond to this portion of his request by indicating whether such a record exists. If the record does exist, the Department should either make the record available to him or if the record is withheld, in whole or in part, it should notify Mr. Shelton, in writing, of that decision and include a statement of the specific exception authorizing nondisclosure and a brief explanation of how the exception applies to the record withheld. KRS 61.880(1).
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.
Roger Shelton, # 100445Western Kentucky Correctional Complex374 New Bethel Road'Fredonia, KY 42411
Jim PeckProbation and Parole Community Center130 East Washington StreetHartford, KY 42347
Brian A. LoganDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400