Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Kentucky Parole Board violated the Kentucky Open Records Act in denying the request of Anna Stacy for "an open record on [Mark Daniel Stacy, #157864]" and a "copy of the criteria used by the parole board in determining the outcome of an inmate's parole hearing. " By notifying Ms. Stacy that files of the type requested are maintained by the Department of Corrections, the Board substantially complied with KRS 61.872(4); the Board acknowledges initially failing to provide Ms. Stacy with the name and location of the official custodian at the DOC in accordance with this provision, but provides both on appeal. Although the Board admittedly failed to issue a written response within three business days, as required by KRS 61.880(1), the Board's response was otherwise consistent with the Act.
By letter directed to James W. O'Keefe, Executive Director, on December 6, 2005, Ms. Stacy requested "an open record on the above person due to the fact" that she had not received answers to "the specific questions in our past correspondence." In addition, Ms. Stacy requested a "copy of the criteria used by the [Board] in determining the outcome of an inmate's parole hearing. " On December 19, 2005, Mr. O'Keefe acknowledged receiving Ms. Stacy's request on December 12, 2005, advising her that inspection of state agency records is governed by KRS 61.870 to 61.884, the Open Records Act. More specifically, Mr. O'Keefe observed that "KRS 61.878 allows public agencies such as ours to exempt from inspection certain documents contained in our inmate files." As explained by Mr. O'Keefe, the Board "utilizes the records of the Department of Corrections in making parole release and revocation decisions and generally does not maintain its own records." Accordingly, the Board was "unable to comply with [Ms. Stacy's] request for the entire file the Board used when it considered Mr. Stacy for parole; it is in the custody of the Department of Corrections."
Upon receiving notification of Ms. Stacy's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of the Board. To begin, Ms. Dennis confirms Mr. O'Keefe's position that records utilized by the Board in making parole decisions are in the custody of the DOC. Citing KRS 61.872(4), Ms. Dennis correctly observes that a more complete response "would have informed Ms. Stacy that her request should be addressed as follows:"
Kentucky Department of Corrections
Offender Information Services
275 E. Main Street
Frankfort, KY 40602-2400
Attn: Melissa Harrod, Assistant Branch Manager
To clarify, the DOC "possesses the Central Office offender record folder that is reviewed by the Parole Board in making its decisions." However, such a folder contains the following types of records concerning an inmate in the custody of the DOC: "(1) Parole Board decisions; (2) Classification records; (3) Disciplinary records; (4) Resident record cards; and (5) Sentencing Information."
Although not required by this office, "it is helpful to the [DOC] if Ms. Stacy will specify the types of records she wishes to receive from the offender record." Having listed examples of records exempt from disclosure with the applicable statutory exceptions, Ms. Dennis notes that medical records are "kept in a separate folder that is maintained at the institution where the inmate is housed, however, an inmate's medical records are generally not considered by the Parole Board in making a decision." 1 From a procedural standpoint, Ms. Dennis correctly observes that Mr. O'Keefe's response on behalf of the Board was issued "two (2) business days outside the three (3) business day response period" of KRS 61.880(1); the Board should have directed a response to Ms. Stacy by Thursday, December 15, 2005, but Mr. O'Keefe's response is dated Monday, December 19, 2005. Because the Board concedes having failed to respond in a timely manner, this office will not belabor the issue.
With respect to Ms. Stacy's request for the criteria used by the Board, "it appears that Ms. Stacy's request was misinterpreted by Mr. O'Keefe." As explained by Ms. Dennis, the criteria considered by the Board "are outlined in Kentucky Parole Board regulations found at 501 KAR 1:030." Because Mr. O'Keefe failed to address this aspect of Ms. Stacy's request, Ms. Dennis enclosed, "free of charge to Ms. Stacy," a copy of the relevant Board regulations. In other words, Ms. Dennis has provided Ms. Stacy with copies of any existing records which are responsive to her request on behalf of the Board. Accordingly, any issues relative to those records are now moot; this office must decline to issue a decision pursuant to 40 KAR 1:030, Section 6. 2 In conclusion, Ms. Dennis advises this office that she has "discussed with Mr. O'Keefe the deficiencies" in his response, and has scheduled an open records training session for the Board "to be held in April 2006."
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54. A public agency such as the Board obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist, or are in the custody of the agency, as the Board did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy its burden of proof, an agency must offer some explanation for the nonexistence of the requested records, or lack of custody, as the case may be, at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist) of the requested records, and the record validates rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
However, the analysis does not end there. Pursuant to 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. " Here, the Board affirmatively indicated that it does not possess or maintain the records requested, 3 briefly explained why any responsive records would be in the custody of the DOC, and provided the requester with the name of the custodial agency, thereby substantially complying with this legislative mandate. On appeal, the Board acknowledges omitting the name and location of the official custodian, and provides both as mandated by KRS 61.872(4). Accordingly, this office affirms the response of the Board to Ms. Stacy's request.
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.
Distributed to:
Anna Stacy16088 West Hadley StreetGoodyear, Arizona 85338-2819
James O' KeefeExecutive DirectorKentucky Parole Board P.O. Box 2400Frankfort, KY 40602-2400
Emily DennisJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, Second FloorFrankfort, KY 40601
Footnotes
Footnotes
1 Citing KRS 61.878(1)(a) and "45 C.F.R. Part 164 (HIPAA)," Ms. Dennis further explains that inmate medical records are exempt from disclosure absent inmate authorization. Accordingly, the DOC does not release copies of inmate medical records "upon request of a third party unless the inmate authorizes the release"; enclosed with Ms. Dennis' response is a blank copy of the authorization form for Ms. Stacy's use in the event she requests her son's medical records. In addition, Ms. Dennis provides Ms. Stacy with the name and address of the custodial agency in accordance with "KRS 61.874, CPP 6.1, and Justice & Public Safety Cabinet policy," explaining the DOC will require advance payment for copies of records at the rate of 10 cents per page plus postage, if applicable, a position consistent with KRS 61.874(1). See 05-ORD-230, pp. 6-7. Because our review is confined to the actions of the Board relative to Ms. Stacy's request, further consideration of the arguments raised by the DOC on appeal is unnecessary. To its credit, the DOC has gone above and beyond in supplementing the Board's response.
2 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.
3 [ILLEGIBLE FOOTNOTE]