Request By:
John R. Garland, # 127517
P.O. Box 5128
LaGrange, KY 42038-5128Glenn Haeberlin
Kentucky State Penitentiary
P.O. Box 128
Eddyville, KY 42038-0128William Lundy, Jr.
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
Frankfort, KY 40602-2400
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 Kentucky State Penitentiary violated the Open Records Act in denying John R. Garland's May 2, 2002 request for the "memo - or policy rey = leg iron, shackle, S.S.U. policy - in hospital or at same [sic]." For the reasons set forth below, we affirm KSP's denial of Mr. Garland's request.
In a response dated May 6, 2002, Deputy Warden Glen Haeberlin denied Mr. Garland's request on the basis of KRS 61.884. It was his position that KRS 61.884, which states that "[a]ny person shall have access to any public record relating to him or in which he is mentioned by name . . . subject to the provisions of KRS 61.878 ," authorizes nondisclosure inasmuch "[a]s neither of these documents mention [Mr. Garland] by name." On appeal, Mr. Garland argues that the "[r]equested documents (Do) apply 'directly' to I/M making request."
In a supplemental response directed to this office following commencement of Mr. Garland's appeal, Department of Corrections Staff Attorney William R. Lundy, Jr., elaborated on KSP's position. He explained:
The appellant is a death row inmate presently incarcerated at Kentucky State Penitentiary (KSP). As a death row inmate, the appellant is a high risk inmate, and whenever he is moved from one location to another within the prison - for example, to the prison hospital - he is placed in leg shackles and other restraints deemed necessary by KSP officials to ensure the safety of the appellant, other inmates, and the institutional staff. As a common sense procedure used at KSP on high risk inmates, the procedure is not prescribed in any DOC policy or memorandum, or any KSP policy or memorandum. Rather, it is simply the internal policy that has been developed over time, and routinely used at KSP.
Because the restraint procedure is not in written form, it does not specifically mention or refer to the appellant, nor can it be produced for inspection. Moreover, even if such restraint procedure was reduced to written form it wold be exempt from inspection under KRS 197.025(1) because its disclosure would constitute a threat to the safety and security of the inmates and staff of KSP, and compromise the very purpose of the secured facility. (See 95-ORD-121).
On these bases, and not those originally articulated by Deputy Warden Haeberlin, we affirm KSP's denial of Mr. Garland's request.
Contrary to Deputy Warden Haeberlin's apparent belief, KRS 61.884 does not establish a separate statutory basis for denying an open records request. Instead, it invests an individual with the right to inspect and copy any otherwise nonexempt public record that relates to him or in which he is mentioned by name. Because of the disclaimer contained in the final clause of KRS 61.884, the provision has very little practical impact. Simply stated, the statutory exceptions codified at KRS 61.878 swallow the rule that a person must be allowed access to records that relate to him. Deputy Warden Haeberlin may have intended to rely on KRS 197.025(2), authorizing the Department of Corrections to deny a request for any record from an inmate contained in a jail or facility "unless the request is for a record which pertains to that individual." That provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 1 Whatever his intentions, Deputy Warden Haeberlin did not articulate a legally supportable basis for denying Mr. Garland's request, and we urge him to insure that future open records responses cite one or more of the exceptions to the Open Records Act and explain how the exceptions apply to the record withheld.
Nevertheless, we affirm KSP's denial of Mr. Garland's request for the reasons set forth in Mr. Lundy's supplemental response. He explains that the procedure to which Mr. Garland apparently objects, and for which he seeks documentary proof, has not been reduced to writing. It is, instead "a common sense procedure used at KSP for high risk inmates" that does not exist in written form. KSP obviously cannot produce for inspection and copying that which it does not have. The Attorney General has long recognized that a public agency is not required to honor a request for records that do not exist. OAG 83-111; OAG 87-54; OAG 91-112; 98-ORD-200; 99-ORD-198. Where, as here, the basis for agency denial of an open records request is that the requested record was never created, and the arguments presented support this position, no additional inquiry is warranted under KRS 61.8715. 2 While we are unable to account for the discrepancy between Deputy Warden Haeberlin's and Mr. Lundy's responses, we find that KSP did not violate the Open Records Act in denying Mr. Garland's request for nonexistent records. Because we affirm KSP on this basis, we do not address its alternative argument that if such a written policy existed, it would qualify for exemption under KRS 197.025(1), authorizing nondisclosure of records deemed by the Commissioner of the Department or his designee to constitute a threat to security.
Having said this, we remind KSP that a 40 KAR 1:030 Section 2 response should be viewed as an opportunity to supplement, and not to supplant, its original denial. The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself. This office will consider supplemental responses that correct misstatements or misunderstandings that appear in, or arise from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. See 96-ORD-193, note 2. KSP should bear these observations in mind in denying future open records requests.
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.
Footnotes
Footnotes
1 KRS 61.878(1)(l) permits public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 KRS 61.8715 recognizes an "essential relationship" between open records access issues and records management issues, and has been construed by this office to warrant inquiry by the Department for Libraries and Archives into agency management of records where those records cannot be located or have been destroyed.