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 failing to respond within five business days upon receiving the request of McClellan Gaines "to inspect meaning listen to recorded tape of Adjustment Committee Hearing" held on August 30, 2005, concerning his "disciplinary report write-up." Having received no response to his request of September 5, 2005, Mr. Gaines initiated this appeal by letter dated September 12, 2005. Upon receiving notification of Mr. Gaines' appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of EKCC. As explained by Ms. Dennis:
Upon receipt of this appeal, I contacted Sharon Rose, Offender Information Supervisor and Open Records Coordinator for EKCC. Following a through search of the open records log that Ms. Rose maintains in her capacity as Open Records Coordinator together with a review of the institutional file maintained by the [Department of Corrections] on inmate McClellan Gaines, # 167658, Ms. Rose informed me that she has no record of having received Mr. Gaines' alleged request. [Footnote omitted]
Mr. Gaines' open records appeal is based on the unproven assertion that he submitted the alleged request in compliance with policy in the first place. Pursuant to 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1, an inmate is required to submit an open records request by institutional mail to the open records coordinator. [Footnote omitted]. Mr. Gaines' open records request is addressed to the EKCC adjustment committee. Obviously, there can be no agency response to a request that has not been received. Since Mr. Gaines fails to show that his request was submitted in compliance with CPP 6.1 and Ms. Rose has no record of having received the alleged request, McClellan Gaines fails to demonstrate that EKCC has denied him access to records in violation of the Open Records Act.
Attached to Ms. Dennis' response are copies of Ms. Rose's sworn affidavit and CPP 6.1, both of which validate her position.
With respect to factual disputes of the nature presented, the Attorney General 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 you have permitted inspection of some records [the requester] 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-061, p. 2, citing OAG 89-81, p. 3; See 04-ORD-036; 03-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Gaines' request for this office to conclusively resolve the related factual dispute, although the fact that Mr. Gaines directed his request to the Adjustment Committee rather than complying with CPP 6.1, coupled with the affidavit of Ms. Rose, certainly lends credibility to the position of EKCC.
Absent objective evidence to the contrary, this office has neither reason to question the veracity of EKCC nor basis to find a violation. In short, the role of the Attorney General in adjudicating a dispute related to open records is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that legislative mandate.
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.
McClellan Gaines, # 167658Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Sharon RoseOffender Information SupervisorEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601