Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Division of Probation & Parole relative to the October 10, 2007, open records requests of Walter H. Park, Jr. "to obtain copies from the source in which Officer Tim Horn used to obtain information listed on my Special Supervision Report," violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
Specifically, Mr. Park submitted four separate requests for copies of the following records to Lelia VanHoose, Director, Probation & Parole, Frankfort, Kentucky:
1. ? all records that reflect "anhydrous Ammonia W/int. to Manf Meth, 1st;"
2. ? all records that were used to reflect "shoplifting" in my charges to list in Supervision Report;
3. ? all documents that reflect this charge was on "foot;" and
4. ? my latest Pre-Sentencing Investigation (P.S.I.) Report that was conducted at Shelby County, Kentucky approximately in early 2004.
By letter dated October 4, 2007, Michael A. Bolas, Assistant Director, Division of Probation & Parole, responded to Mr. Park's request, advising:
I have, as of today's date, received in my office your correspondence dated October 1, 2007.
Please be advised that this Office does not have custody of the records you request. Please contact Probation & Parole Officer Tim Horn with your request at the following address:
1036 Amberly Way, Suite C
Richmond, KY 40475
On October 18, 2007, Mr. Park initiated the instant appeal, arguing that the agency's response subverted the intent of the Open Records Act "by the 'imposition of misdirecting' and deluding the applicant/petitioner to seek requested documents elsewhere, whom are subordinates and under the authority and supervision of said agency."
After receipt of notification of the appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised, in relevant part:
As previously noted, by response of same date, Asst. Director Bolcas informed Mr. Park that his open records request should be directed to Officer Horn's work station in Richmond, KY, as Mr. Horn was the last officer to supervise Mr. Park.
Mr. Park alleges that this is an imposition, that DOC Division of Probation & Parole is misdirecting and deluding him to seek requested documents elsewhere; however, he is incorrect in his interpretation of the response as a denial of requested records.
The Division of Probation & Parole is comprised of Nineteen Supervisory Districts. As of October 31, 2007, the Division supervised 38,304 individuals. It is an enormous responsibility to supervise this many people and maintain records regarding these individuals. Because of the enormity of this task, the Director of the Division of Probation & Parole has designated District Supervisors to serve as open records coordinators for the nineteen supervisory districts. The District Supervisor for District Eight, in which the Richmond office is located, is Mark Davidson. As open records coordinator for Probation & Parole District 8, Mr. Davidson is the official custodian of the records Mr. Park seeks. If Mr. Park would rather direct his request to the official custodian than deal with the actual custodian - Tim Horn - who possesses the records, he may write to District Supervisor Davidson at 44 W. Main St., P. O. Box 350, Mt. Sterling, KY 40353. The actual custodian of the records Mr. Park seeks is Tim Horn, whose address was correctly provided to Mr. Park by Asst. Director Bolcas.
For these reasons, the Dept. of Corrections, Division of Probation & Parole complied with KRS 61.872(4) by providing Mr. Park with the name and location of the actual custodian where his Probation & Parole client records are housed and further by now providing Mr. Park an alternative by writing the official custodian, Probation & Parole Supervisor Davidson.
It is the opinion of this office that the actions of the Division of Probation & Parole did not constitute an intention to subvert the intent of the Open Records Act short of a denial in its handling of Mr. Park's requests.
With respect to the procedural requirements of the Open Records Act, as they pertain to correctional facilities, KRS 197.025(7) provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
In the instant case, Mr. Park submitted his requests on October 1, 2007, and Mr. Bolas, Assistant Director, Division of Probation & Parole, Frankfort, Kentucky, as noted in its response above, received and responded to the requests on the same day, October 4, 2007, advising Mr. Park that his office did not have custody of the records he requested and provided him with the name and location of the custodian of the records requested. KRS 61.872 (4) provides:
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.
KRS 61.872(4) requires that if a public records request is sent to someone who does not have custody or control of the requested records, the person who receives the request must notify the requester of this fact and provide the requester with the name and location of the official custodian of the public records. 02-ORD-81. Mr. Park was promptly notified that Probation & Parole Officer Tim Horn had custody of the requested records and provided his address. This was in substantial compliance with KRS 61.872(4) and did not constitute a violation of the Open Records Act.
In the response provided to this office, the agency advised that the Director of the Division of Probation & Parole had designated District Supervisors to serve as open records coordinators for the nineteen supervisory districts. The District Supervisor for District Eight, in which the Richmond office is located, was Mark Davidson, who was the official custodian of the records Mr. Park seeks and provided Mr. Davidson's address.
In 00-ORD-12, p. 3., this office stated:
Where public records are in the custody and control of the agency to which a request is directed, but the recipient of the request is not the agency's official custodian, the recipient must immediately forward the request to the agency's official custodian. 98-OMD-64. Where the public records are not in the custody and control of the agency to which the request is directed, the agency discharges its duty under the Open Records Act by so notifying the requester and furnishing him with the name and location of the official custodian of the agency in whose custody the records reside. KRS 61.872(4).
Here the requested records are within the custody and control of the Division of Probation & Parole. Since the Division has designated District Supervisors to serve as open records coordinators for the nineteen supervisory districts, the proper course, in our view, would be to confer with the District Supervisor for District Eight, who is the official custodian of the records Mr. Park seeks and the Probation & Parole Officer who has actual custody of the requested records in formulating a response to his requests and reroute the requests to the appropriate department that maintains the requested records, rather than requiring him to resubmit his requests. 99-ORD-157. Accordingly, the Division should promptly respond to Mr. Park's requests, rather than require him to resubmit his 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.