Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Department of Corrections, Offender Information Services Branch, relative to the request of Lonnie Edward Shaw for copies of records relating to his parole hearings of June 4, 1999, and June 2, 2004, violated the Kentucky Open Records Act. Although this office is not equipped to conclusively resolve the factual issue of whether Offender Information Services received Mr. Shaw's request as alleged and therefore violated KRS 61.880(1) in failing to respond, Information Services fully complied with the Open Records Act upon receiving notification of this appeal.
On August 14, 2004, Mr. Shaw directed the following request to the Kentucky Parole Board:
I would like to have the [records from the hearings] held by the Parole Board on June 4, [19]99 and June 2, 2004, where Lonnie Shaw #28120 was denied parole. I would like to have the entire record transmitted to paper for legal purposes. Case #73-174.
In a letter dated August 25, 2004, Marian Young, Administrative Specialist III, Parole Board, advised Mr. Shaw that the Parole Board "maintains only the audio tapes. " As explained by the Parole Board:
Tapes regarding parole hearings are maintained for eighteen (18) months. Tapes regarding final parole revocation hearings are maintained for three (3) years.
In either case, your request for a copy of the June 1999 hearing can not be processed as it no longer exists. In as much, your $ 4.00 check is being returned to you. If you wish a copy of your June 2004 hearing you'll need to resubmit your request along with the $ 2.00 processing fee.
In compliance with KRS 61.872(4), 1 the Parole Board advised Mr. Shaw to contact Offender Information Services at P.O. Box 2400 Frankfort, Kentucky 40602, for "actual paper documentation" regarding his June 1999 hearing, as that branch is "the official keeper of records" and apparently the "only resource available" to him for "documentation regarding that hearing."
Upon receiving the Parole Board's response, Mr. Shaw allegedly directed his request to Offender Information Services at the address provided. By letter dated September 25, 2004, Mr. Shaw asks this office "to instruct the Offender Information [Services] [B]ranch to adhere" to the Open Records Act. On appeal, Mr. Shaw's sole complaint is that Offender Information Services did not respond to his request dated August 27, 2004, "which constitutes a clear violation" of KRS 61.880(1).
Upon receiving notification of Mr. Shaw's appeal, Emily Dennis, staff attorney at the Justice and Public Safety Cabinet, responded on behalf of Offender Information Services. According to Ms. Dennis:
Upon receipt of Mr. Shaw's appeal, I contacted Melissa Harrod, Assistant Branch Manager for the Offender Information Services Branch. Ms. Harrod searched Mr. Shaw's file record and advised there is no record of Offender Information Services having received a request for records from Mr. Shaw. The Offender Information Services has not received Mr. Shaw's alleged 08/27/04 request.
Citing KRS 61.872(2), 2 the DOC correctly observes "there can be no violation of the Kentucky Open Records Act by an agency that has not received a request for public records. " Since Information Services never received the alleged request for records, "there is no basis for the Attorney General to conclude" that Information Services violated the Open Records Act in this case. Attached to the DOC's response is the sworn affidavit of Ms. Harrod dated October 13, 2004, in which Ms. Harrod attests to the following:
In my position as Assistant Branch Manager, one of my responsibilities is to receive and prepare responses to open records requests from inmates addressed to Offender Information Services. I am also responsible for the maintenance of Central Office offender file records. I have reviewed the central office offender file for Mr. Lonnie Edward Shaw, #028120. The request dated 08/27/04 from Lonnie Edward Shaw, #28120, which is the subject of open records appeal log #200400373, is not in Mr. Shaw's file record. Furthermore, to my knowledge, the Offender Information Services Branch has not received the 08/27/04 request for records Mr. Shaw alleges to have made.
In addition, the DOC explains that a copy of an offender's Parole Board decision is maintained in both the central office file at Offender Information Services and the offender's institutional record file at the institution where the offender is currently housed. Accordingly, Ms. Dennis contacted Offender Information Services at the Kentucky State Reformatory where Mr. Shaw's institutional record is currently maintained. Upon reviewing Mr. Shaw's file, Offender Information Specialist Marc Abelove discovered that Mr. Shaw requested identical records from KSR in July 2004 and received copies of those records via institutional mail. 3 Although the records which Mr. Shaw will receive from Information Services in Frankfort "are no different than the copies maintained at KSR, which he has apparently already received[,]" the DOC indicates that Mr. Shaw may submit a request to Offender Information Services in Frankfort, along with a fifty-seven cent ($ 0.57) money order payable to the Kentucky State Treasurer for copies of the records plus postage, and Information Services will provide him with the requested copies.
Upon receiving a copy of the DOC's response on behalf of Information Services, Mr. Shaw supplemented his appeal by letter dated October 19, 2004. Attached to Mr. Shaw's letter is a copy of the "Inmate Legal Mail Log" which appears to substantiate his claim that correspondence directed to Information Services was mailed on August 31, 2004 but does not refute the position of Information Services that no such correspondence was ever received. According to Mr. Shaw, the records provided by KSR consisted of the "deferment sheets" from June 1999 and June 2004 which he never requested "in the first place." Acknowledging receipt of those copies, Mr. Shaw explains that he requested "the record in writing or whatever format they have of the hearing itself." However, Mr. Shaw simultaneously contends that his letter of August 27, 2004, requested copies "of these two deferment hearings" thereby seemingly contradicting his earlier assertion.
KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. (Emphasis added).
On appeal, Mr. Shaw alleges that Information Services violated this provision in failing to respond to his request within the designated time period. However, Information Services denies ever receiving Mr. Shaw's request. With respect to factual disputes of this nature between a requester and a public agency, this office has consistently observed:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that [Mr. Shaw has been] permitted [to inspect] some records [he] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; See 04-ORD-036; 03-ORD-204. As in these decisions, the record on appeal does not contain sufficient information concerning the actual delivery and receipt of Mr. Shaw's request for this office to conclusively resolve the related factual discrepancy although the affidavit of record does support the position of Information Services. In short, the role of the Attorney General in adjudicating an open records dispute is defined by KRS 61.880(2) and this office is without authority to deviate from that statute.
However, the fact that Mr. Shaw has already received copies of the existing records which are responsive to his request from KSR does not relieve Information Services of its duty to provide Mr. Shaw with copies of the same records in its possession upon receiving "advance payment of the prescribed fee, including postage" as authorized by KRS 61.874(1) . 00-ORD-16, p. 4. On several occasions, the Attorney General has rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10. It is only through full disclosure of an agency's records that a requester can satisfy himself that the record is complete. Id. As long recognized by this office, "a public agency cannot withhold public records from a requester simply because the records may be obtained from another source." 97-ORD-87, p. 4, citing OAG 90-71. Here, Information Services implicitly acknowledges this duty and properly agrees to provide Mr. Shaw with copies of the requested records upon receiving his request along with the prescribed copying fee and postage; no more is required.
If Mr. Shaw elects to resubmit his request, any remaining issues regarding the records in dispute will become moot upon disclosure of those records. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Consistent with this mandate, the Attorney General has repeatedly held that if access to public records which are the subject a request is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Accordingly, this office assumes that disclosure of the specified records will satisfactorily resolve this matter.
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.
Footnotes
Footnotes
1 KRS 61.872(4): "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. " In affirmatively indicating to Mr. Shaw that records from the June 1999 hearing no longer exist and providing him with both the name and address of the custodial agency which maintains the existing responsive records, the Parole Board fully discharged its statutory duty relative to his request.
2 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 On October 19, 2004, the DOC supplemented its response via facsimile. Attached to this response is a copy of Mr. Shaw's request for copies of the Parole Board's decisions of June 4, 1999, and June 2, 2004, directed to the "KSR Records Department" on July 13, 2004. According to the "disposition" section of the request form, Mr. Abelove provided Mr. Shaw with copies of those records on July 22, 2004.