Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether Western Kentucky Correctional Complex and Lee Adjustment Center violated the Open Records Act in the disposition of Earl White's requests for various records pertaining to a disciplinary proceeding held at LAC that arose from a December 16, 2002, incident. These facilities afforded Mr. White access to or copies of all of the records identified in his request with the exception of the Chain of Evidence Form, the Miranda Warning which was read to Mr. White during the disciplinary proceeding, and the transcript of those proceedings. Having reviewed the supplemental responses submitted on behalf of WKCC and LAC, we find no error in WKCC's disposition of Mr. White's request, and a single, albeit significant, error in LAC's disposition of Mr. White's request.
By letter dated March 25, 2003, Department of Corrections staff attorney, Emily Dennis, notified this office that because the disciplinary proceedings arising from the December 16 incident was not conducted at WKCC, WKCC records custodian Cynthia Vinson properly notified Mr. White that WKCC could not honor his request for the transcript of the proceeding, the "Chain of Evidence Form" or the Miranda Warning read to him during the proceeding. Ms. Dennis noted that Ms. Vinson advised Mr. White to contact LAC in order to obtain these records. She cited ample authority for the proposition that a public agency cannot afford a requester access to records that it does not have or which do not exist, that the agency discharges its duty under the Open Records Act by affirmatively so stating, and that if the person to whom the request is directed does not have custody of the records requested, that person is required to notify the requester of the name and location of the official custodian of the agency's public records. Ms. Dennis mailed a copy of her response to Mr. White. We agree in full with Ms. Dennis's analysis and find that WKCC did not violate the Open Records Act in partially denying Mr. White's request.
By letter dated March 25, 2003, LAC records clerk, Tracy Brewer, notified this office that LAC does not transcribe tapes of disciplinary proceedings but that Mr. White can obtain a copy of the tape upon submission of a request for that record and prepayment of copying charges. Further, she advised that "[t]he Miranda Warning is read to the inmate during the adjustment committee [disciplinary proceedings] and should be stated so in his original disciplinary report." Ms. Brewer indicated that there is no separate Miranda Warning form. Finally, Ms. Brewer explained that she erroneously believed that the only copy of the "Chain of Evidence Form" Mr. White requested was available in his institutional file at WKCC. She later learned that a copy of the form is maintained at LAC by the Chief of Security and agreed to mail a copy to Mr. White. Although Ms. Brewer copied her letter to this office to "File," she did not send a copy to Mr. White. This omission, compounded by the deficiencies in her original response to Mr. White's request, must be deemed to constitute a violation of KRS 61.880(1). We urge LAC to review KRS 61.880(1) to insure that its responses contain "particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996), construing KRS 61.880(1).
If Mr. White wishes to obtain a copy of the tape of the disciplinary proceedings conducted at LAC, and if he has adequate funds in his inmate account, he can obtain a copy of the tape from LAC upon submission of a new open records request to Ms. Brewer. LAC is not obligated under the Open Records Act to transcribe the tape for him. Having acknowledged her error in failing to locate the "Chain of Evidence Form" maintained at LAC, we find that Ms. Brewer should mail Mr. White a copy of that form after the proper financial arrangements are made for payment of that copy. As in the case of WKCC, LAC cannot provide Mr. White with a document, namely the Miranda Warning, that it does not maintain. We find no error in the disposition of this portion of his request.
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.