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 responses of the Kentucky State Penitentiary (KSP) to two separate open record requests submitted by Kenneth Goben violated the Open Records Act. For the reasons that follow, we find that the responses of the KSP did not violate the Act.
By request dated December 17, 2002, and received by the KSP on December 30, 2003, Mr. Goben asked for the following:
The names of the three staff members who sat on the adjustment committee on 5/21/01. A copy of the memo that gave Kenneth Goben permission to be at water plant (12-2000-5-2001)
By Memorandum dated January 2, 2003, Thomas L. Simpson, Deputy Warden for Programs, on behalf of KSP, responded to Mr. Goben's request, advising, in relevant part:
In accordance with KRS 61.872(4): you are notified this office nor this institution, has custody or control of the records requested, (Part II of the Disciplinary Report). The original document (of which you provided a copy of) is maintained in your institutional file in the Records Office of which you are housed. Should you desire to obtain a copy of that record, you may correspond with that office. No other known documents exist containing the information requested. Should you know of such, you may submit a request for such.
In accordance with KRS 61.872(5): you are notified the remaining document requested (memo regarding water plant) does not exist or is otherwise not available. The Water Plant Supervisor during the dates referenced has since retired. In his absence, the following were questioned if they were aware of or could locate such document, all to no avail: current Water Plant Supervisor; Assistant Maintenance Supervisor, Maintenance Supervisor, Maintenance Secretary and Deputy Warden for Support Services Secretary.
By letter dated May 27, 2003, and received by the KSP on May 30, 2003, Mr. Goben submitted another open records request to the KSP, requesting "a copy of all the names, position and salary of all the employees who worked at the Kentucky State Penitentiary on May 21, 2001. Please exclude all home addresses, phone numbers and social security numbers. (OAG 76-717)."
On June 3, 2003, Nancy Doom, custodian of KSP personnel records, denied Mr. Goben's request, advising:
In accordance with KRS 197.025(2), the department shall not be required to comply with a request for any record from any inmate unless the request is for a record which contains a specific reference to that individual. Your request is therefore denied.
In his letter of appeal, Mr. Goben asks this office to review the responses of the KSP.
After receipt of Notification of the Appeal and a copy of Mr. Goben's letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. Elaborating on KSP's June 3, 2003 response, Ms. Dennis advised, in relevant part:
The Department submits that, to the extent Mr. Goben attempts to appeal KSP's denial dated January 2, 2003, his appeal should not be considered since it is time-barred pursuant to KRS 197.025(3). In addition, for reasons set forth below, the Department submits that the 6/3/03 response of Nancy Doom, custodian of KSP personnel records, to Mr. Goben's 5-27-03 request was fully in compliance with the provisions of the Open Records Act.
Addressing Mr. Goben's May 27, 2003 request and the KSP's denial of that request, Ms. Dennis explained, in relevant part:
? KRS 61.878(1)(l) exempts from disclosure 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(2) states that " . . . the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless that request is for a record which contains a specific reference to that individual." Clearly, a list of employees who worked at the Kentucky State Penitentiary on a date certain will not contain a "specific reference" to an individual inmate.
We address first the KSP's response to Mr. Goben's December 17, 2003 request for names of the three staff members who sat on the adjustment committee of 5/21/01. In response to this request for a record regarding the names of three staff members who sat on the Adjustment Committee on 5/21/01, Deputy Warden Simpson advised Mr. Goben that KSP did not have custody or control of that record. He further advised Mr. Goben that the original of the document was maintained in the Records Office at the institution in which he was housed and he should correspond with that office.
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 KSP's response, in affirmatively advising Mr. Goben that it did not have the requested record, was consistent with the Open Records Act and prior decisions of this office and did not constitute a violation of the Act. Moreover, KSP's response notifying Mr. Goben that the document he requested was maintained in the Records Office at the institution in which he was housed was also consistent with the requirements of the Open Records Act.
KRS 61.872 (4) provides:
If 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.
KRS 61.872(4) requires that if a public records request is sent to someone who does not have custody or control of the requested records, the person who receives the request must notify the requester of this fact and provide the requester with the name and location of the official custodian of the public records. 02-ORD-81. Thus, we conclude that the KSP's response was in compliance with KRS 61.872(4) and did not constitute a violation of the Open Records Act.
In addition, a request for names is more a request for information than a request for a described record. This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored under the Open Records Act. See, for example, OAG 90-100. There we held that to the extent that the request asked questions, it was a request for information as distinguished from a request to inspect reasonably identified documents.
The KSP also properly responded to Mr. Goben's request for the memorandum that gave him permission to be at the Water Plant by affirmatively advising him of its efforts in searching for the record and notifying him that the requested record did not exist or could not be found. We find no violation of the Open Records Act in this response.
We also affirm KSP's denial of Mr. Goben's request for a copy of "all names, position, and salary of all employees who worked at the Kentucky State Penitentiary on May 21, 2001" under authority of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In 03-ORD-73, p. 3, this office, in discussing the 2002 amendment to KRS 197.025(2), observed:
That provision previously authorized correctional facilities to withhold records from an inmate unless the records "pertain[ed] to that [inmate] ."
The language of KRS 197.025(2) has since been narrowed to require that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) The net effect of this amendment has been to further curtail the inmate's right of access to records maintained by the Department of Corrections and correctional facilities . . . .
See also, 03-ORD-007. As noted by the KSP's response, a list of all names, position, and salary of all employees who worked at the Kentucky State Penitentiary on a certain date would not contain a specific reference to an individual inmate. Since such a record would not contain a specific reference to Mr. Goben, we find that the KSP properly denied his request under authority of KRS 197.025(2).
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.
Kenneth Goben, # 124582Blackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Glenn HaeberlinKentucky State PenitentiaryP.O. Box 5128Eddyville. KY 42038
Emily DennisStaff AttorneyDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602