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 Kentucky State Reformatory (KSR) violated the Open Records Act in the disposition of Jerry L. Lewis's request for a copy of a "24-hour notice sheet. " For the reasons that follow, we find that KSR's disposition of Mr. Lewis's request was proper and did not constitute a violation of the Act.
In response to Mr. Lewis's request, Officer Cathy Buck, Adjustment Committee Officer, KSR, denied his request explaining that the 24-hour work sheet to sign to come to court call is a courtesy only and that his 24-hour notice starts from the time he signs his write up and receives his copy of the write up. Officer Buck stated that this was per Policy regarding his 24-hour notice.
After receipt of Notification of appeal and a copy of Mr. Lewis's letter of appeal, Officer Buck and Emily Dennis, Staff Attorney, Department of Corrections, provided this office with separate responses to the issues raised in the appeal.
In her response, Officer Buck expanded on her original response, explaining:
Please be advised, I received your notice Monday, January 27, 2003, in regards to the denial of the Open Records Act. I sent I/M Lewis several responses regarding this. I/M Lewis wants to receive a copy of the sheet that I sent out for inmates to sign to let them know they have a Court Call the next day. I have explained to I/M Lewis the sheet in question is a courtesy only and I do not keep these sheets, due to they are disposed of that morning if I even receive them back. I/M Lewis states his Due Process was violated due to this.
I/M Lewis states that his 24-hour notice was denied him, but for which it was not. I explained to I/M Lewis that his 24-hour notice starts from the date, time and he receives his copy of the Disciplinary Report per Policy KSR 15.6 page 8 section under B letter B, which states (Provide the inmates a copy of the Disciplinary Report. If the report is not provided, the report shall be given to the inmate not less than 24 hours prior to the hearing unless notice is waived.) (Per General Counsel Inmates 24-hour notice starts from the time the inmate signs and receives his copy of the Disciplinary Report,) which I/M Lewis received.
In the Department of Corrections' response, Ms. Dennis addressed the issues raised in the appeal, explaining in relevant part:
. . . . What Mr. Lewis refers to as a "log sheet" or "24-hour notice sheet" is no more than an appointment ledger that constitutes a "preliminary draft" pursuant to KRS 61.878(1)(i) or "preliminary memoranda" under KRS 61.878(1)(j); see also Courier-Journal v. Jones, Ky.App., 895 S.W.2d 6 (1995). Consistent with the preliminary nature of the document, the adjustment committee docket sheet that Inmate Lewis requested has been discarded. Pursuant to KRS 61.872(3), a public agency may properly deny a request to inspect or copy a document on grounds that the document does not exist.
A "log sheet" is distinguishable from an appointment ledger since a "log" is a record of events as they occur. Mr. Lewis is incorrect in this assertion that the adjustment committee docket sheet is a "24-hour notice sheet" . Signatures on the log sheet reflect an acknowledgement by an inmate that he or she has an appointment with the adjustment committee. As you will see from your review of the docket sheet, not all inmates will sign acknowledging the appointment.
According to the Records Retention Schedule for state agencies, "Informational & Reference Material" is included in miscellaneous category, M0018, Informational or Reference Material. Records in this category are to be retained by an agency indefinitely and may be destroyed when no longer useful. An adjustment committee docket sheet is for general informational purposes only. It is no longer useful after the hearing date, since pursuant to 501 KAR 6:020, Corrections Policy & Procedure 15.6, adjustment committee hearings are both tape recorded and documented by a written disciplinary report provided to the inmate.
We are asked to determine whether the KSR's actions in regards to Mr. Lewis's request violated the Open Records Act. For the reasons that follow, we conclude that the agency's actions did not violate the 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. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, the KSR's action in affirmatively advising Mr. Lewis that it did not have the requested adjustment committee docket sheet was consistent with the Open Records Act and prior decisions of this office and did not constitute a violation of the Act.
Moreover, the KSR and the Department adequately explained the preliminary nature of the adjustment committee docket sheet, explaining that it is in the nature of an appointment ledger that is distributed to the inmates as a courtesy to let them know they have a court call the next day, is for informational purposes only, and is no longer useful after the hearing date. Officer Buck indicated that the document is usually disposed the morning of the hearing and, in this instance, the document requested by Mr. Lewis has been destroyed.
In the Department's response, Ms. Dennis indicated that an adjustment committee docket sheet is for general informational purposes only and, thus, would fall within the miscellaneous category, M0018, Informational or Reference Material, Records Retention Schedule for state agencies. Ms. Dennis explained that records in this category are to be retained by an agency indefinitely and may be destroyed when no longer useful. She explained that the adjustment committee docket sheet is no longer useful after the hearing date, since pursuant to 501 KAR 6:020, Corrections Policy & Procedure 15.6, adjustment committee hearings are both tape recorded and documented by a written disciplinary report provided to the inmate.
Under these facts, we conclude that KSR's destruction of the adjustment committee docket sheet would not be inconsistent with Records Retention Schedule, Series No. M0018, which states that information or reference material of this nature may be destroyed when no longer useful.
Finally, Mr. Lewis argues that the failure to provide him with a copy of the adjustment committee docket sheet at issue here violated his due process rights. We cannot address, in the context of an open records appeal, a complaint that one's due process rights have been violated. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the KSR violated the Open Records Act in its handling of Mr. Lewis's request, which, as noted above, we concluded it did not.
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.
Jerry L. Lewis, # 129509Kentucky State Reformatory3001 West Highway 146LaGrange, KY 40021
Cathy BuckKentucky State Reformatory3001 West Highway 146LaGrange, KY 40021
James W. StephensKentucky State Reformatory3001 West Highway 146LaGrange, KY 40021
Emily DennisStaff AttorneyKY Department of Corrections2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400