Request By:
Winston Briscoe, # 142764
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty, KY 41472Warden John Motley
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty, KY 41472Emily Dennis
Department of Corrections
Office of General Counsel
2439 Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying the request of Winston Briscoe to inspect a specified segregation unit log. By notifying Mr. Briscoe that no record exists which is responsive to his request in a timely and proper fashion, EKCC fully complied with the provisions of the Open Records Act. Because the record requested does not contain a "specific reference" to Mr. Briscoe, EKCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), as an additional basis for denying Mr. Briscoe access. No further action is required.
In a handwritten letter dated October 26, 2004, Mr. Briscoe framed his request as follows:
From 8-9-04 to 9-20-04 I was in disciplinary segregation in dorm # 5. On 9-16-04, while eating lunch I bit down on a piece of metal. I reported it to the officer. There was an occur[ence] report made of it. It was also logged down. Please send me [one] copy of the segregation log reflecting this report [as] soon as possible.
Having allegedly received no response to his request, Mr. Briscoe initiated this appeal.
Upon receiving notification of Mr. Briscoe's appeal, Emily Dennis, staff attorney, Justice and Public Safety Cabinet, Department of Corrections, responded on behalf of EKCC via facsimile. According to Ms. Dennis:
Mr. Briscoe failed to attach a copy of the EKCC response to his appeal, however, on receipt of this appeal, EKCC Offender Information Specialist Tami Williams faxed me her response to Mr. Briscoe's request, dated 10/29/2004, as follows: "Request for log denied. There is nothing in the log about this occurrence, but the occurance (sic) report you have requested on a previous date, has been located and attached." 1
The Kentucky Open Records Act provides persons access to public records. Your office has consistently recognized that a public agency cannot afford a requestor access to records that it does not have or which do not exist. 93-ORD-134. Contrary to Mr. Briscoe's assertion, there is no notation in the segregation unit log on 9/16/2004 for the incident described by him. Thus, Ms. Williams complied with the Kentucky Open Records Act by her 10/29/04 response to Winston Briscoe denying him access to the segregation unit log since it did not contain a specific reference to him or any information about the occurrence as requested by him. 2
On November 24, 2004, Ms. Dennis supplemented her response on behalf EKCC. In relevant part, Ms. Dennis observes:
As referenced in my footnote # 1 on page 2 of the 11/22/2004 letter, please find enclosed for your review only the SMU Control Center Log for date 9/16/2004, same as which was requested by Mr. Briscoe on 10/26/2004. EKCC denied Mr. Briscoe access to this record, since there is no specific reference to Mr. Briscoe in this log. As of the date of this log, Mr. Briscoe was housed in Unit 5-CU4.
Attached to the supplemental response issued by the DOC on behalf of EKCC are copies of both the "SMU Control Center Log" and the "SMU Floor Patrol Log" from the relevant time frame on September 16, 2004, neither of which contains any reference to Mr. Briscoe. In our view, the reasoning contained in 04ORD-214, a copy of which is attached hereto and incorporated by reference as to the obligations of a public agency denying a request because responsive records do not exist, and the application of KRS 197.025(2), is determinative on the facts presented. Id., pp. 3-6. Accordingly, the same result follows. Because no record exists which is responsive to Mr. Briscoe's request, EKCC discharged its statutory duty by so advising Mr. Briscoe in "clear and direct terms." In the alternative, EKCC properly withheld the requested log on the basis of KRS 197.025(2) because the log does not contain a "specific reference" to Mr. Briscoe.
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.
Footnotes
Footnotes
1 Upon receiving a copy of the DOC's response on behalf of EKCC, Mr. Briscoe advised this office that he has not received a copy of the previously requested incident report in a letter dated December 5, 2004. Apparently operating under the mistaken assumption that EKCC directed a copy of the report at issue to this office, Mr. Briscoe requests a copy. Assuming that the incident report requested contains a "specific reference" to him, EKCC should forward a copy to Mr. Briscoe in accordance with its initial response if it has not already taken such action.
2 In a footnote, Ms. Dennis further indicates that the Department of Corrections will provide a copy of the segregation log from the date and time specified by Mr. Briscoe for this office to review in camera via supplemental response to follow.