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 Department of Corrections, Division of Probation and Parole (District 1) violated the Kentucky Open Records Act in denying the request of Freeland Riley for a copy "of the information filed in advance with the McCracken County Sheriff's Department to schedule a visit to my residence locate[d] at 255 McKendree Church Road in Paducah, Kentucky 42003 at 20:18 or 20:45 hrs. on November 16, 1999 as required by the [INTERAGENCY AGREEMENT] pursuant to PADUCAH'S OPERATION NIGHT VISION POLICY under [the] [s]ection entitled ["Liaison Duties"] where notification must be filed prior to any visit to my residence after hours to include the Sheriff's Department in the visit to my home with the Parole [Officer]." Although the Division initially misconstrued Mr. Riley's request and mistakenly relied upon 00-ORD-143 as the basis for denial, the Division has corrected this error on appeal. Because the Division cannot produce for inspection or copying records which do not exist or those which it does not possess, nor can the Attorney General declare the failure to create records a violation, or subversion of, the intent of the Open Records Act, this office must affirm the denial of Mr. Riley's request in accordance with prior decisions.
In a letter dated September 24, 2007, Renee Maness, Supervisor/District 1, advised Mr. Riley that he was apparently "denied access to these previously requested records by [the] Office of [the] Attorney General in 00-ORD-143." In addition, Ms. Maness explained that "Probation and Parole Officers are required by policy to conduct home visits/curfew checks per Corrections Policy and Procedure. Probation and Parole Officers are not required to give anyone notice of a scheduled home visit/curfew check." Although she did not provide Mr. Riley with contact information for the Records Custodian, as required by KRS 61.872(4), Ms. Maness otherwise complied in referring him to the McCracken County Sheriff's Department "for copies of information filed with them." Noting that the Division had misinterpreted his written request as being for the Operation Night Vision Policy at issue in 00-ORD-143, Mr. Riley initiated this appeal by letter dated October 4, 2007.
Upon receiving notification of Mr. Riley's appeal from this office, Emily Dennis, Staff Attorney, responded on behalf of the Division. As explained by Ms. Dennis:
To his credit, Mr. Riley correctly asserts that Division 1, Division of Probation & Parole misinterpreted his request. However, Mr. Riley is incorrect in his statement that Operation Night Vision constitutes a "policy." Instead, Operation Night Vision was an agreement between the [Division] and local law enforcement regarding the structure, operation, and sharing of services and personnel under the Night Vision Program. In addition, Mr. Riley incorrectly concludes that the [Division] was required to file information with the local sheriff's office to "schedule" a night visit to Mr. Riley's residence on November 16, 1999. Under 501 KAR 6:270, Corrections Policy & Procedure (CPP) 27-07-01, probation & parole officers may assist law enforcement agencies in an effort to apprehend any offender known to be or suspected to be involved in criminal activity. [Footnote omitted.] There is no requirement whatsoever that the KY DOC notify anyone of a scheduled home visit or curfew check.
The only record in the possession of the Division relative to the November 16, 1999 home visit is the Special Supervision Report to the Parole Board attached hereto, which details the several weapons, . . . found in Mr. Riley's possession during a visit by the Division in cooperation with the Sheriff's Office. [Footnote omitted.] To the extent that Mr. Riley claims to want the information that Probation & Parole filed concerning himself and their visit to his home, there is no further "information" to report to Mr. Riley other than as reflected in the Special Supervision Report. To the extent that Ms. Maness misunderstood Mr. Riley's request, it does not appear that her misunderstanding was an attempt to willfully withhold records to which Mr. Riley was entitled. The specific records requested by Mr. Riley simply do not exist because there was no requirement that the Division file information with the local sheriff's office to "schedule" a night visit to Mr. Riley's residence on November 16, 1999. In addition, Operation Night Vision was an agreement, not a policy, between local law enforcement agencies. There was and remains no requirement that the KY DOC provide Mr. Riley any notice under Operation Night Vision.
Although the Division initially erred in relying upon 00-ORD-143, in which this office upheld the Department of Corrections' denial of Mr. Riley's request for any and all records pertaining to Operation Night Vision on the basis of KRS 197.025(2), as noted by Mr. Riley and confirmed by Ms. Dennis, the Division has belatedly satisfied its burden of proof under KRS 61.880(2)(c) 1 in advising Mr. Riley that no records exist which are responsive to the request at issue and providing a credible explanation for the nonexistence of such records.
In our view, the analysis contained at pp. 6-9 of 07-ORD-023, a copy of which is attached hereto and incorporated by reference, applies with equal force on the facts presented. Because the Division is not required to file information of the kind requested with local law enforcement agencies prior to scheduling a night visit to the residence of a parolee, the Division's assertion that no records containing the information requested exist is entirely credible. 2 When, as in this case, the agency denies the existence of the requested documents, and the record supports, 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. 3
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.
Footnotes
Footnotes
1 In relevant part, KRS 61.880(2)(c) provides: "The burden of proof in sustaining the action shall rest with the agency . . . "
2 Even assuming that Mr. Riley correctly represents the portions of the Operation Night Vision Agreement quoted in his letter dated October 22, 2007, the "offenders to be visited and names of probation and parole officers assigned to conduct visits" is the only "information" which the Liaison is required to provide the Paducah Police Department and McCracken County Sheriff's Department with in advance; the Division is not required to provide information of the nature requested.
3 Noticeably absent from the record is any evidence to suggest willful concealment of responsive records by the Division; the Attorney General's Office is not the appropriate forum in which to resolve such issues under KRS 61.991(2)(a) in any event.