Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in failing to respond upon receipt of Terrance Lancaster's request for specified disciplinary records. Upon receiving notification of Mr. Lancaster's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of the KSR; Lisa Heightchew, Offender Information Supervisor for the KSR, advised Ms. Dennis that she never received the request. Attached to Ms. Dennis' response is a copy of the affidavit signed by Ms. Heightchew in which she indicates that a review of the open records log for February and March 2007 reveals "no record of having received the alleged open records request set forth in Mr. Lancaster's letter dated February 22, 2007." As correctly argued by Ms. Dennis, this appeal "is based on the unproven assertion that the alleged request was received" by the KSR; Mr. Lancaster "offers no proof that he actually mailed the request. There can be no agency response to a request that was not received." Because Mr. Lancaster fails to show that his request was actually mailed and Ms. Heightchew has no record of having received his request, Mr. Lancaster "cannot demonstrate that the KSR has failed to respond to his open records request in violation" of the Open Records Act. In short, Ms. Dennis is correct in this assertion.
To the extent Mr. Lancaster wishes to properly file a request "for the disciplinary report records (Warden's decision on appeal, Parts I and II of the Disciplinary Report Form, transfer documentation, and stolen property report), records of which are located in his inmate institutional records folder," Ms. Dennis advises that Mr. Lancaster should file a request with the Institutional Open Records Coordinator at Marion Adjustment Center, where he is currently housed. In order to obtain a copy of the adjustment hearing tape, which is a record of the KSR, Mr. Lancaster should mail his request to the following address:
Kentucky State Reformatory
3001 W. Highway 146
LaGrange, KY 40032
Attn: Lisa Heightchew, Offender Information Supervisor
According to Ms. Dennis, the record on appeal contains "insufficient information" for the Office of the Attorney General "to resolve the factual dispute concerning the actual delivery and receipt of the open records request allegedly made. See 05-ORD-013, 03-ORD-061." Because the position articulated by Ms. Dennis on behalf of the KSR is both supported by the record and consistent with governing precedent, this office affirms.
In our view, 05-ORD-013 and 03-ORD-061 are controlling on this issue as well as the application of KRS 61.872(4); a copy of each decision is attached hereto and incorporated by reference. See 05-ORD-264. As in the cited decisions, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of Mr. Lancaster's request for this office to conclusively resolve the related factual discrepancy. Absent objective proof, this office finds no procedural violation by the KSR. In short, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statute. Having clarified which records are maintained by the KSR and provided Mr. Lancaster with contact information for the custodian of the requested audiotape, in compliance with KRS 61.872(4), the KSR has fully complied with relevant provisions of the Open Records Act.
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.
Terrance Lancaster, # 195128 BGU 567
Lisa HeightchewOffender Information SupervisorKentucky State Reformatory West Highway 146LaGrange, KY 40032
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601