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 Kentucky Parole Board relative to the open records request of Johnny Penn violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
In his letter of appeal, dated December 29, 2004, Mr. Penn asserts that the Parole Board did not respond to his December 6, 2004, open records request in requested copies of records used and considered by the Parole Board in his reconsideration hearing and a copy of the tape of the hearing.
After receipt of Notification and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised in relevant part:
Mr. Kuster never received the request allegedly made by Mr. Penn. Since Mr. Kuster did not receive the alleged request, Johnny Penn's claim that Parole Board Chairman Theodore Kuster violated the open records act by failing to respond has no basis in fact. A public agency cannot possibly respond to a request it never received. Additionally, an open records appeal is an inappropriate forum to address the merits of an open records request that was not received by the agency in the first place.
Offender record folders are maintained by David Alexander, Branch Manager, Offender Information Services, KY Dept. of Corrections, P. O. Box 2400, 275 East Main St., Frankfort, KY 40601. To the extent the Kentucky Parole Board considered any documentation regarding Mr. Penn in making its reconsideration decision, this documentation will not be in the custody of the Parole Board, but rather is located in the offender record folder maintained by the Dept. of Corrections.
In addition, Parole Board hearings are audiotaped, not videotaped. Mr. Penn may receive a copy of the audiocassette tape of the reconsideration hearing by sending $ 2.00 by check or money order payable to Kentucky State Treasurer to the Kentucky Parole Board. Kentucky Parole Board deliberations, however, are exempted from the application of the Open Meetings Act (See KRS 61.810(1)(a). These deliberations are not recorded. The only record of a Parole Board deliberation is the final decision of the Board, copy of which is provided to an inmate free of charge upon processing by the Offender Information Services Branch of the Dept. of Corrections.
We are asked to determine whether the actions of the Parole Board violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
We address first Mr. Penn's claim that the agency failed to respond to his open records request. In her response, Ms. Dennis advised that she checked with Mr. Kuster, the person to whom Mr. Penn 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. Penn's 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.
We next address the Department's response to Mr. Penn's request. In her response to this office, with a copy to Mr. Penn, Ms. Dennis advised that the requested records, if they exist, would not be in the Parole Board's custody and control, but rather located in the offender record folder maintained by the Department of Corrections. She then provided the name and location of the official custodian of the Offender Information Services where offender records are housed and where Mr. Penn could obtain, if they exist, the records he sought. The Department'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. Penn 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.
Finally, Mr. Penn was advised that he would be provided with a copy of the audiotape of his Parole Board reconsideration hearing upon prepayment of $ 2.00 for the tape. A public agency can properly require prepayment of the copying fee prior to mailing a public record. The action of the Department in offering to provide Mr. Penn with a copy of the tape upon prepayment of the appropriate copying fee was consistent with the Open Records Act. KRS 61.872(3); 95-ORD-105.
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.
Johnny Penn, # 170727Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41412
Theodore R. KusterKentucky Parole Board ChairmanP. O. Box 2400Frankfort, KY 40602-2400
Emily DennisOffice of General CounselDepartment of Corrections2439 U. S. 127 SouthFrankfort, KY 40601