Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex violated the Open Records Act in the disposition of Gregory Valentine's September 17, 2007, request for a copy of any record documenting Education Professional Standards Board Director of Legal Services Alicia Sneed's, or any EPSB employee's, attempt to "leave a telephone message (or any other message) to inmate Gregory Valentine # 163775 on any date between Tuesday, September 4, 2007, and Thursday, September 8, 2007." For the reasons that follow, we affirm LSCC's disposition of Mr. Valentine's request.
By memorandum dated September 17, 2007, LSCC Records Department employee Beth Harper notified Mr. Valentine that LSCC maintained no record responsive to his request. On the same day, Mr. Valentine initiated this appeal arguing that the requested records "are required to be maintained by the Department of Corrections archival retention schedule."
In supplemental correspondence directed to this office following commencement of Mr. Valentine's appeal, LSCC elaborated on its position asserting that his belief that the requested record must exist by virtue of the applicable records retention schedule "has no basis in fact." Continuing, LSCC observed:
Neither the Kentucky Open Records Act nor the KY Department of Corrections Policies & Procedures (CPPs) requires that the KY DOC document telephone messages for inmates. There is likewise no requirement that Offender Information Services document this information in an inmate's offender record folder or in the Kentucky Offender Management System (KOMS). In fact, Corrections' Code of Ethics - PP 3.1 - prohibits Corrections' employees from ". . . taking or sending, either to or from, an inmate any verbal or written message, from or to a third person . . . except as necessary in carrying out the employee's assigned duties."
In sum, it was the agency's position that "there is no basis upon which to find that LSCC violated the Open Records Act by failing to document a phone message for an inmate. " We agree.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 1 pertaining to management of public records, the Act regulates access to public records that have been prepared, owned, used, or are in the possession of or retained by a public agency. 2 Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Thus, in an early opinion the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See, e.g., 95-ORD-125 (Louisville Firefighters Pension Fund properly denied request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets); 97-ORD-15 (University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the agreement resided); 98-ORD-90 (correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request).
LSCC asserts that it maintains no responsive records and that there is no legal requirement that it do so. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
Id. On this basis, the Court concluded "that before a complaining party is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie 3 showing that such records do exist." Id.
In support of his claim that LSCC must maintain a record documenting EPSB's attempt to contact him by telephone, Mr. Valentine references the Department of Corrections Records Retention Schedule. In general, that schedule does not direct the creation of records, but governs the retention of records that are, in fact, created. Thus, KRS 171.640 provides:
The head of each state or local agency shall cause to be made and preserved records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities. Such documentation shall be created, managed, and preserved in accordance with standards, rules and regulations prescribed by the department under the provisions of KRS 171.410 to 171.740.
Records creation is therefore, within these legal parameters, a matter of state or local agency prerogative and records retention and management a matter of Department for Libraries and Archives' prerogative by and through, inter alia, the records retention schedules developed by KDLA and approved by the Archives and Records Commission pursuant to KRS 171.420(3).
The current schedule governing records management for adult correctional institutions, including LSCC, 4 contains a records series at 05577 for Daily Activity Logs which " could include logs regarding . . . telephone calls . . . ." (Emphasis added.) The Schedule and accompanying Records Description and Analysis makes clear that "[l]ogs will vary among the different types of institutions (minimum, medium, and maximum security)." (Emphasis added.) Had LSCC exercised its prerogative in favor of creation of a telephone log, that log would be subject to a six year retention requirement. LSCC has apparently elected not to do so. Mr. Valentine makes no showing, prima facie or otherwise, that a telephone log, in fact, exists within the facility. In the absence of such a showing, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government, above, to affirm LSCC's position. Accord, 06-ORD-042; 06-ORD-223; 07-ORD-045; 07-ORD-085.
In the concluding paragraph of the supplemental response, counsel for LSCC comments on communications with EPSB to confirm the latter agency's attempt to contact Mr. Valentine by telephone relative to an earlier request directed to EPSB:
Had the KY DOC been notified regarding Mr. Valentine's request for records relating to [a named individual] 5 in the first instance, the KY DOC would have invoked KRS 197.025(1) and KRS 61.878(1)(l) because Mr. Valentine's request for records relating to the victim of his crime (first degree sexual abuse) constitutes a threat to the security of the institution and further endangers the safety, privacy, and identity of [a named individual]. Ms. Sneed assured me that in the event she receives future open records requests from inmates that the Educational Professional Standards Board will notify the Department of Corrections so that it may take action, as appropriate, to protect the public from an inmate's attempt to contact the victim or learn personal information about his crime victim.
The question of whether the Department of Corrections "may take action, as appropriate" to prevent an inmate from obtaining records from a separate and independent public agency pursuant to KRS 197.025(1), or treat that agency as its designee for purposes of that provision, is currently before the Franklin Circuit Court 6 and is by no means an established rule of law. We leave this issue to the courts for final resolution, and will, in the meantime, continue to adhere to the view that in enacting KRS 197.025(1), "the General Assembly expressly limited [its] scope to the Department of Corrections and those facilities under its jurisdiction." 07-ORD-175, p. 6.
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.
Gregory Valentine, # 183775
Beth HarperRecords DepartmentLittle Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Emily DennisOffice of Legal Services Justice & Public Safety Cabinet125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 See, KRS 61.8715.
2 See, KRS 61.870(2).
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3 Black's Law Dictionary, 1071 (5th ed. 1979), defines the term prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
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4 A copy of the pertinent portion of the records schedule is attached hereto.
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5 Mr. Valentine's victim is identified by name. We omit her name in deference to her privacy interest.
6 Personnel Cabinet v. Gregory Valentine, No. 07-CI-1502 (Franklin Circuit Court, Division 1).
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