Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Justice and Public Safety Cabinet, Division of Corrections (Division) relative to the open records request of Aaron Rivers violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
In his letter of appeal, received by the office on September 9, 2004, Mr. Rivers asserts that on August 25, 2004, he mailed a hand copied request for copies of letters that he had written to Don Bottom, Kentucky Department of Corrections previously that concerned his "possibly being in Ohio at some point in the future. (Safety concerns)." Mr. Rivers states that his request had not been answered and, on that basis, initiated the instant appeal.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Justice and Public Safety Cabinet, Office of Legal Services, responded on behalf of the Division, provided this office and Mr. Rivers with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
This letter is in final response to the above-referenced open records appeal filed by inmate Aaron Rivers, VA # 283728, KY # 126638. In his appeal, Mr. Rivers claims that Kentucky Dept. of Corrections Program Administrator Don Bottom violated the Kentucky Open Records Act by refusing to respond to an open records request he allegedly mailed to Mr. Bottom on 8/25/04. Upon receipt of this appeal, I contacted Don Bottom relative to the allegations of Mr. Rivers' appeal. Mr. Bottom has no record of having received the request allegedly made on 8/25/2004. 1
In an undated letter to the Attorney General, Mr. Rivers states that, on 8/25/04, he made an open records request to Don Bottom of the Kentucky Department of Corrections. Mr. Rivers further claims the request was mailed on 8/25/2004 and that the mailing was allegedly witnessed by his attorney. Notably missing from his letter of appeal is an affidavit attesting to the events he claims occurred 9/25/2004. Therefore, it is impossible to determine whether Mr. Rivers' allegations are factual.
Mr. Bottom has not received the request allegedly made by Mr. Rivers. Since Don Bottom has not received the request Mr. Rivers alleges to have made, Aaron Rivers' claim that Don Bottom has violated the open records act by failing to respond to an open records request is premature. In addition, to the extent Mr. Rivers has written Don Bottom letters in his capacity as the Kentucky Interstate Compact Coordinator, a copy of this correspondence is not maintained by Mr. Bottom, but rather is in the custody of the Offender Information Services Branch, where offender records are housed. To the extent Mr. Rivers wants to submit this request, the request must be directed to the records custodian, Mr. David Alexander, Branch Manager, Offender Information Services, P.O. Box 2400, 275 E. Main St., Health Services Bldg., Frankfort, KY 40602-2400. 2
In order to receive copies of these public records in the custody of the Dept. of Corrections to the extent the records exist and are not otherwise exempt from disclosure, Mr. Rivers will further be required to make arrangements to payment for the copies. The Open Records Act does not provide for the waiver of reproduction charges for the indigent. In addition, the Attorney General has held that, if an inmate requests copies and his account does not contain sufficient funds to cover the copying fee, the Department is not required to provide copies. See OAG 91-210, following Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985).
We are asked to determine whether the actions of the Division violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
We address first Mr. Rivers' claim that the agency failed to respond to his open records request. In her response, Ms. Dennis advised that she checked with Mr. Bottom, the person to whom Mr. Rivers indicated he had sent his request, and he advised that he had not received the request and signed an affidavit to that effect. Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Rivers' open records request, thus, we make no finding in this regard. See 03-ORD-061. Obviously, an agency cannot respond to a request it does not receive.
In her response to this office, with a copy to Mr. Rivers, Ms. Dennis advised that the requested records, if they existed, would not be in Mr. Bottom's custody and control, but rather in the custody of the Offender Information Services Branch, where offender records are housed. She then provided him with the name and location of the official custodian of the Offender Information Services Branch where he could obtain, if they exist, the records he sought. The Division's response was in compliance with KRS 61.872(4), which 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.
Accordingly, if he has not already done so, Mr. Rivers should submit his open records request to Mr. David Alexander, Branch Manager, Offender Information Services, P.O. Box 2400, 275 E. Main St., Health Services Bldg., Frankfort, KY 40602-2400.
A party aggrieved by this decision may appeal it by initiating an 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.
Aaron Rivers, VA # 283728, KY # 126638600 Old Frankfort CircleLexington, KY 40510
Don BottomProgram AdministratorInterstate Compact CoordinatorJustice and Public Safety CabinetDivision of Corrections2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Emily DennisOffice of Legal ServicesDivision of CorrectionsJustice and Public Safety Cabinet2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 See Exhibit 1 - Affidavit of Don Bottom.
2 See Exhibit 2 - 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1.
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