Request By:
Uriah M. Pasha, # 092028
Emily Dennis
Leonard "Klaytor" Burden
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Western Kentucky Correctional Complex violated the Kentucky Open Records Act in denying the request of Uriah M. Pasha for a copy of the "WKCC-SMU-Classification Committee's Memorandum giving Uriah M. Pasha # 92028 his 48 hour notice that he would meet the Committee for his Initial Classification after his arrival September 24, 2007; and, the Classification Committee's Decision during said Initial Classification within ten days of his arrival 9-24-07." Although WKCC initially failed to offer any explanation for the nonexistence of the requested memorandum, WKCC ultimately satisfied its burden of proof in explaining that such a record is properly characterized as General Correspondence, 1 Record Series No. M0002 on the General Schedule for State Agencies , the disposition instructions for which specify that such records must be retained by the agency for no longer than two (2) years; WKCC cannot produce for inspection or copying a record which does not exist.
In a timely written response, Offender Information Supervisor Leonard "Klaytor" Burden denied Mr. Pasha's request as to the "classification memo," advising that "per KRS 61.872(5) the document does not exist." WKCC attached a copy of Mr. Pasha's "inmate case notes that show the findings of the classification committee on 9-28-07." Citing a "Scheduling Order" and 06-ORD109, Mr. Pasha initiated this appeal challenging the denial of his request by letter dated December 6, 2007. Correctly arguing that a public agency "cannot merely claim the record does not exist," without offering some explanation, Mr. Pasha supplemented his appeal by undated letter received on January 2, 2007, attaching a copy of a document entitled "Notice of Classification Committee" in support of his position that a copy of the requested memorandum should exist.
Upon receiving notification of Mr. Pasha's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of WKCC. To begin, Ms. Dennis explains that "WKCC provided Mr. Pasha with a copy of his Inmate Case Notes showing that the Classification Committee considered Mr. Pasha's Classification on 09/28/07, noted no changes, and that Mr. Pasha was not present at the hearing nor did the Classification Committee require his presence based on the inmate's history." 2 A copy of the aforementioned Inmate Case Notes is attached to her written response. According to Ms. Dennis:
Corrections Policy & Procedure (CPP) 18.1 requires forty-eight (48) hour written notice, Mr. Pasha contends, and his possession of a memorandum dated 12/06/07 is proof that the WKCC should have generated and maintained a copy of the 48-hour notice of his initial classification hearing held in September.
Contrary to Mr. Pasha's argument, 06-ORD-109 does not address whether an institution is required to maintain copies of an inmate's notice of a classification committee meeting concerning the inmate. 06-ORD-109 (June 2, 2006) In re: Uriah Marquis Pasha/Kentucky State Reformatory dealt with records of Mr. Pasha's participation in the CPTU program, which records were lost or misplaced.
In addition, 501 KAR 6:020, CPP 18.1 provides that "[e]ach scheduled inmate shall be notified forty-eight (48) hours prior to his meeting with Classification Committee." However, "[a]n inmate may waive the forty-eight hours notice. " "The waiver," the policy continues, "shall be clearly documented on the classification document. If a document is not completed, the waiver of forty-eight (48) hours notice shall be completed and placed in the inmate record." [Attached to Ms. Dennis' response is a copy of CPP 18.1, p. 3 of which validates her assertion.] Contrary to Mr. Pasha's claim, this policy does not require that the institution maintain a copy of the forty-eight hour notice document.
There is no "scheduling order" requiring a correctional institution to maintain a copy of any 48-hour notice it generates for an inmate's [C]lassification [C]ommittee meeting. The Notice of Classification Committee record dated 12-06-07 to "All Concerned" which Mr. Pasha provided to the Office of the Attorney General is simply an in-house tracking document for the WKCC, which may be characterized as [M0002] - [Routine] Correspondence pursuant to the General Schedule for State Agencies . The retention disposition instruction for this series of records is indefinite 3 with instruction that an agency is to maintain general correspondence for longer than two (2) years. Neither American Correctional Association (ASA) standards nor the Department of Corrections' records retention schedule require maintenance of this record. To the extent a record may have existed at WKCC similar to the Notice of Classification Committee memorandum that Mr. Pasha presents to the Attorney General with this appeal, it cannot be located, nor was it required to be maintained by any applicable retention schedule.
In conclusion, Ms. Dennis acknowledges that Mr. Pasha is correct in asserting that a public agency "cannot merely claim that a record does not exist" and his point "is well-taken. WKCC should have provided a more detailed reason as to why the record does not exist as set forth above." Accordingly, Ms. Dennis advised WKCC and OIS Supervisor Burden of this burden of proof; "however, there is no 'smear campaign' or 'lie' as Mr. Pasha would suggest." Because the position of WKCC, as outlined by Ms. Dennis on appeal, is validated by the record and governing precedent, this office affirms the denial by WKCC of Mr. Pasha's request.
In our view, the analysis contained in 07-ORD-112 is directly on point; a copy of that decision is attached hereto and incorporated by reference. As long recognized by the Attorney General, a public agency cannot honor a request for nonexistent records or those which it does not possess. 04-ORD-036, p. 5. Likewise, this office has consistently held that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act." 96-ORD-139, p. 2. To clarify, the role of Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1); this office is without authority to deviate from that statutory mandate. Nevertheless, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency "must offer some explanation for the nonexistence of the requested records at a minimum." 07-ORD-112, p. 8. For example, the agency must identify steps taken to locate missing records or explain under what authority the records were destroyed. Although WKCC initially failed to satisfy this requirement, just as the Kentucky State Penitentiary did in 07-ORD-112, WKCC has now provided a credible explanation for the nonexistence of the requested memorandum; nothing more is required.
More specifically, a memorandum is properly characterized as Routine Correspondence, which is governed by Record Series No. M0002 of the General Schedule for State Agencies developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061. As correctly argued by Ms. Dennis, the disposition instructions for Series No. M0002 require that state agencies maintain such records for no longer than two (2) years; accordingly, WKCC cannot be said to have violated the Act in failing to produce a memorandum that has apparently been destroyed or lost even assuming that such a record was ever created. Notwithstanding Mr. Pasha's contrary assertion, this office again finds that nothing in 06-ORD-109, involving records confirming Mr. Pasha's participation in the CPTU program, alters this conclusion.
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 Although the analysis remains unchanged for purposes of this appeal, the undersigned has been advised by the Kentucky Department for Libraries and Archives that "GeneralCorrespondence" has been replaced by "Routine Correspondence" ; accordingly, that record title will be used for the remainder of this decision. Routine Correspondence may be in electronic or paper format. As explained in the "Function and Use" section for Series No. M0002, "[t]his series documents implementation of the agency policy espoused in Series M0001, Official Correspondence. Typically, Routine Correspondence includes documents relating to day-to-day activities such as procurement, organizational structure, personnel, customer service, etc." Routine Correspondence includes:
. . . incoming and outgoing correspondence that may consist of: letters, notes, postcards, memoranda , announcements, or other information commonly found in the body of an e-mail message and/or any attachments. Electronic mail messages also contain transactional information (sender, recipient, date, subject, etc.) in the header of the message and in the properties field of the electronic file. Routine correspondence does not include: non-business related messages, spam and junk mail. (Emphasis added.)
2 Given that Mr. Pasha's appeal focuses exclusively on the denial of his request for the memorandum, this office assumes that a copy of the Inmate Case Notes complied with his request for the decision of the Classification Committee; accordingly, related issues are moot per 40 KAR 1:030, Section 6.
3 With regard to "Indefinite Records" generally, the General Schedule provides:
The term "indefinite" is not a retention period and does not mean permanent. Indefinite means the period of time before the retention of the record begins. For example, the retention of the departmental copy of personnel records is five years, but the retention does not begin until the individual's employment with the agency is terminated. In this case, the indefinite period is the time between creation of the record and termination of employment, which triggers the five year retention period. In the case of reference and informational material, the retention is determined by when the records cease to have value administratively, which could be one day, one month, or several years. The disposition instructions in the General Schedule explain the conditions under which indefinite records may be destroyed.