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 Eastern Kentucky Correctional Complex (EKCC) relative to the sixteen open records requests of Donald Ray Hall submitted over a period of time dating from 02/11/2004 - 03/14/2005 violated the Open Records Act. For reasons that follow, we find no violation of the Act.
After receipt of notification of Mr. Hall's appeal, and a copy of his March 29, 2005 letter of appeal, Emily Dennis, Justice and Public Safety Cabinet, Office of Legal Services, responded on behalf of EKCC. Addressing the issues raised in the appeal, Ms. Dennis advised in relevant part:
Mr. Hall's allegations with respect to requests # 1-13 should not be considered as Mr. Hall is time-barred from asserting an appeal of these responses. Pursuant to KRS 197.025(3), any person confined in a penal facility shall challenge any denial of an open records request with the Attorney General by mailing or otherwise sending appropriate documents to the Attorney General within 20 days of the denial. Requests # 1-13 are chronologically ordered from responses made 2/11/2004 - 02/02/2005. This appeal is made more than 20 days after the 02/02/2005 denial. Therefore, an appeal of responses made to requests # 1-13 should be considered time-barred pursuant to KRS 197.025(3).
Mr. Hall alleges that his request # 14 was never made, because " . . . when I tried to file for it I was refused the right to file this request by my case worker Mrs. Diane Lambert." In his letter he alleges Mrs. Lambert verbally informed him that the record he wanted would not be available due to lapse of time and that he complained to her that she was violating his right to access to records necessary for a current legal action. Mr. Hall's allegations regarding his conversation with EKCC case worker, Diane Lambert, and whether or not she refused to provide him with a blank copy of the Request to Inspect Public Records Form, are not properly the subject of an open records appeal. Your office has ruled that a public agency cannot require a requestor to use a pre-printed form to make an open records request. However, a public agency may require, if it desires to do so, that a request or application be in writing. 03-ORD-036, see also 94-ORD-101. Mr. Hall could have submitted his request in the form of a letter and provided authorization to use his inmate account in the letter if he could not get a blank copy of the form from his case worker. In any event, an agency cannot respond to a request it does not receive. See 05-ORD-013, 03-ORD-061.
Request # 15, dated 2/17/2005, is not addressed in Mr. Hall's appeal letter and apparently was not sent to the EKCC open records coordinator. It does not appear that this request for ". . . (1) copy of a phone recording made on 1-13-04, 2:39 p.m. from Dorm 3-C Upper to (606) 439-4509 . . . " was ever made. This is a case where insufficient information is presented in the appeal to the Attorney General's Office to resolve the factual dispute concerning the actual delivery and receipt of the open records request allegedly made. An agency cannot, in any event, respond to a request it does not receive. See 05-ORD-013, 03-ORD-061.
Finally, Captain Michael Smith's response to request # 16 complied with the Kentucky Open Records Act. On 3/14/2005, the EKCC open records coordinator received the following request for public records from Mr. Hall:
On 3/14/2005, Captain Smith replied as follows:
As your office has recognized several times, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150.
Mr. Hall invites the Attorney General to conclude that EKCC has somehow violated his rights to access the courts by denying him access to a record he views as critical to a case alleging ineffective assistance of counsel. The statement he makes in his 3/14/2005 request, "This is the 16th time I have tried to obtain this record since 2-9-04" is not a fact. Requests # 1 and # 2 are for phone calls made on 1/20/2004, not 1/13/2004. Request # 3 (which was granted) requested recordings of phone calls made on 1/21/2004 or 1/22/2004. Request # 6, made 9/08/2004, requested assistance of the open records coordinator to ascertain the exact date of the recording he wanted copied. This is not an open records request. In addition, Mr. Hall failed to include information as required by CPP 6.1 so that the open records coordinator could process his request. Request # 7, made on 9/13/2004, did not include a telephone number for the records requested and was for a telephone call made on 1/27/2004. Request # 8 was for phone call made on 1/23/2003. On 10/15/2004, Mr. Hall made his ninth (9th) request, this time for a copy of a phone call made on 1/27/2004. In request 10, Mr. Hall requested a list of the dates and times he called a certain phone number between January 13-January 30, 2004. Requests 11 and 12 were for call detail reports, which were granted. Request # 13 was for "one copy of the taped conversation requested per phone conversations. " Alleged requests # 14 and # 15 are addressed above. None of these prior requests "precisely describe" the record for which he requests a copy in request # 16, "a copy of a taped phone call made on 1/13/2004 at 2:39 p.m. from Dorm 3-CU to (606) 439-4506." Therefore, it is wholly inaccurate for Mr. Hall to characterize the 3/14/2005 request as the ". . . 16th time I have tried to obtain this record since 2-9-04."
As correctly observed by Ms. Dennis, "Mr. Hall's allegations with respect to requests # 1-13 should not be considered as Mr. Hall is time-barred from asserting an appeal of these responses." KRS 197.025(3) provides:
KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge the denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in circuit court. (Emphasis added).
As noted by Ms. Dennis, requests # 1-13 are chronologically ordered from responses made 2/11/2004 - 02/02/2005. However, Mr. Hall did not initiate this appeal challenging the denials or responses of these requests until March 29, 2005. Because Mr. Hall is "a person confined in a penal facility," and he failed to challenge EKCC's denials or responses to requests # 1-13 within twenty days, as mandated by KRS 197.025(3), his appeal as to these requests is untimely and the appeal of the responses made to requests # 1-13 is time-barred pursuant to KRS 197.025(3). Accordingly, this office is precluded from rendering a decision on the merits of requests # 1-13. 03-ORD-007, 02-ORD-110, and 02-ORD-54.
Addressing request # 14, Mr. Hall contends that on February 8, 2005, he was precluded from submitting that request because his case worker refused to provide him with a blank copy of the institution's "Request to Inspect Public Records" form. Mr. Hall failed to appeal this alleged action of EKCC within twenty days, as mandated by KRS 197.025(3), thus his appeal as to this issue, too, is untimely and time-barred pursuant to KRS 197.025(3). Accordingly, this office is precluded from rendering a decision on the merits of request # 14. 03-ORD-007. However, as noted by EKCC's response above, assuming the caseworker did refuse to provide Mr. Hall with a blank Request to Inspect Public Records form that would not have precluded him from submitting a written request in the form of a letter and providing authorization to use his inmate account to pay for copying fees.
EKCC states that it never received request # 15, dated 2/17/2005. Mr. Hall does not address this request in his March 29, 2005 letter of appeal. 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. An agency cannot respond to a request it does not receive. Here, too, Mr. Hall failed to challenge any action of EKCC relative to request # 15 within twenty days, as mandated by KRS 197.025(3), thus his appeal as to this request, too, is untimely and time-barred pursuant to KRS 197.025(3).
Addressing Mr. Hall's March 10, 2005 request # 16 for a copy of "a taped phone call made on 1-13-04 at 2:39 p.m. from Dorm 3-CU to (606) 439-4509," EKCC advised him that the telephone system only had the capability to store records for approximately 6 months, and thus, it did not have the January 13, 2004 taped call he requested. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150. Accordingly, we find no violation in EKCC's response to request # 16.
Mr. Hall also states in his March 14, 2005 request that "This is the 16th time I have tried to obtain this record since 2-9-04." EKCC's response set forth above refutes this fact. Nevertheless, Mr. Hall argues in his letter of appeal that EKCC's actions relative to his requests has denied him access to the records and, in effect, denied him access to the courts. We can not address, in the context of an open records appeal, a complaint that an agency has denied one's constitutional rights. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; 03-ORD-136.
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.
Don R. Hall, # 153862Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472-2140
Tami WilliamsRecords CustodianEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisDepartment of Corrections2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400