Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
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 Roy A. Brockett for a copy of the audiotape recordings of specified parole hearings. Having ultimately advised Mr. Brockett in writing that no audiotape recording of his December 2002 parole hearing currently exists, and explained that Hearing Tapes, governed by Record Series No. 04540 of the Parole Board Records Retention Schedule, must only be retained by the agency for a period of six months, the Parole Board has fully discharged its duty under the Open Records Act; the Parole Board cannot produce for inspection or copying a record which does not exist. In accordance with 97-ORD-143 and 07-ORD-112, this office affirms the denial of Mr. Brockett's request as further substantiated by the Parole Board on appeal.
On a standard request form directed to Theodore R. Kuster, Kentucky Parole Board, on November 23, 2007, Mr. Brockett requested information "as to where [he could obtain] a copy of [his] November 21th [sic], 2007 [P]arole [H]earing tape; specifically, he needed "to know the cost of this tape and postage and" to whom he should forward payment. Also, Mr. Brockett requested a copy of the audiotape recording of his December 2002 parole hearing. In a timely written response, Marian Young, Internal Policy Analyst II, responded to Mr. Brockett's request on behalf of the Parole Board, advising that she was "unable to process" his request because the retention period "for hearing tapes maintained by our office is eighteen (18) months. The tape of your December 2002 [parole hearing] no longer exists." With regard to his November 2007 hearing, the Parole Board advised Mr. Brockett to resubmit his written request along with the required processing fee of $ 2.00, "check or money order, payable to the Kentucky State Treasurer." 1 By undated letter, which this office received on December 10, 2007, Mr. Brockett initiated the instant appeal challenging the denial of his request as to his December 2002 parole hearing. In support of his position, Mr. Brockett relied upon KRS 439.330(4).
Upon receiving notification of Mr. Brockett's appeal from this office, Emily Dennis, Justice and Public Safety Cabinet, responded on behalf of the Parole Board. Having quoted the language of KRS 439.330(4), 2 Ms. Dennis explains:
KRS 439.330 does not specify for what period of time the Parole Board is required to maintain copies of audiocassette tape recordings of its hearings. I am advised by Ms. Young that the Parole [Board] currently maintains audiocassette tape recordings of regular [P]arole [B]oard hearings for a period of eighteen (18) months, preliminary hearing tapes for fourteen (14) months, and final parole revocation hearing tapes for three (3) years. The written record of these proceedings -- which include Parole Board decisions, parole revocation preliminary hearing decisions, and final revocation orders -- are transferred by the Parole Board to the Kentucky Dept. of Corrections (KY DOC) for maintenance in offender record folders as electronic or paper documents. An electronic record of Parole Board action is further reflected in the Kentucky Offender Online Lookup (KOOL), a website of the KY DOC which shows when an inmate met the Parole Board and the action taken by the Board relative to an inmate on that date. According to the KY DOC KOOL record, Mr. Brockett met the Parole Board on December 17, 2002, at which time his parole was deferred for a 60 month period.
In Ms. Dennis' view, it would "not be reasonable for the Parole Board to maintain a five (5) year old parole hearing tape for one inmate when the Board meets [and] conducts approximately 16,000 hearings annually within the eligibility requirements established by statute and regulation that consider the question of parole for convicted offenders. "
To her credit, Ms. Dennis had advised the Parole Board that steps must be taken to ensure compliance with the State Archives and Records Act, in addition to the Open Records Act, and efforts were underway, as of December 20, 2007, to ensure that an official retention schedule was established for the Parole Board "as soon as practical." However, Ms. Dennis supplemented her written response, on December 21, 2007, advising that on that date, the Parole Board had "located the Records Retention Schedule approved in December 1994. According to the approved retention schedule, audiotapes of parole hearing [s] are to be retained for six (6) months . . . .Thereafter, the audiotape record is to be destroyed, [or erased and reused] by the agency." In closing, Ms. Dennis notes that she has "alerted the Dept. of Library and Archives to request that this Retention Schedule be posted on [its] web page, where I could not find it yesterday." Because it complies with "both the Kentucky Open Records Act and an approved Records Retention Schedule," Ms. Dennis contends the Parole Board's response should be affirmed. Having reviewed the attached portions of the applicable Records Retention Schedule, this office agrees. 3
As long recognized by the Attorney General, a public agency cannot produce for inspection or copying nonexistent records; however, a public agency is required to deny the existence of the records in a timely written response as Ms. Young did on behalf of the Parole Board in this case. With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis contained in 07-ORD-112, a copy of which is attached hereto and incorporated by reference, is controlling. Since KRS 61.8715 was enacted in 1994, this office has applied a higher standard of review to denials premised on the nonexistence of the records being sought. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer a credible explanation for the nonexistence of the records at a minimum.
Although the Parole Board initially failed to rely upon the applicable retention schedule, the Parole Board has remedied this error on appeal. More specifically, the Parole Board has advised this office that audiotapes of parole hearings ("Hearing Tapes" ) are governed by Record Series No. 04540 of the Parole Board Records Retention Schedule, developed by the Kentucky State Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061, the retention period for which is six months; the disposition instructions require the Parole Board to "[d]estroy or erase and reuse" such audiotapes after that period of time has elapsed. In our view, 97-ORD-143 is directly on point; a copy of that decision is attached hereto and incorporated by reference. A review of the attached Records Retention Schedule validates the Parole Board's assertion regarding the nonexistence of the audiotape recording of Mr. Brockett's December 2002 parole hearing. Because Mr. Brockett's hearing was conducted almost five years prior to when his request was made, the audiotape no longer exists nor did the Parole Board err in destroying or erasing it; accordingly, the Parole Board properly denied Mr. Brockett's request. When, as in this case, the agency denies the existence of the records, and the evidence supports rather than refutes that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-136; 00-ORD-83.
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 Nothing more is required; the Parole Board is authorized by KRS 61.874(1) to require a written request and "advance payment of the prescribed fee, including postage where appropriate."
2 KRS 439.330(4) provides:
The board shall keep a record of its acts, an electronic record of its meetings, a written record of the votes of individual members, and the reasons for denying parole to inmates. These records shall be public records in accordance with KRS 61.870 to 61.884. The board shall notify each institution of its decisions relating to the persons who are or have been confined therein, and shall submit to the Governor a report with statistical and other data of its work at the close of each fiscal year.
3 In a letter dated December 24, 2007, Mr. Brockett advises that "no exhibit of any kind" was attached to his copy of Ms. Dennis' response; accordingly, this office has attached a copy of the Parole Board Records Retention Schedule to this decision for his reference.