Request By:
Gregory Valentine, # 163775
Beth Harper
Emily Dennis
Barbara Teague
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Little Sandy Correctional Complex cannot be said to have violated the Open Records Act in denying Gregory Valentine's December 9, 2007, request for a copy of "Disciplinary Report Form Part-1 Write Up and Investigation written by Corrections Officer McDaniel against inmate Gregory Valentine, Inmate No. 183775, on October 21, 2007," because that report had been destroyed and LSCC could not afford him access to a record that no long exists. However, LSCC advises that the requested report is an unscheduled record, and, consistent with the position taken in 04-ORD-040 and 07-ORD-182, we believe the report "should [have been] retained by the agency until a retention schedule [was] established for [it]." 04-ORD-040, p. 3; quoted in 07-ORD-182, p. 8. We conclude that these open records decisions, and in particular the discussions at page 5 of 04-ORD-040 and page 8 of 07-ORD-182, are dispositive of the issue on appeal. As in 04-ORD-040 and 07-ORD-182, this appeal "presents the occasion for [LSCC and the Department of Corrections] to work with the [Kentucky Department for Libraries and Archives] to schedule these and other previously unscheduled records" relating thereto. Id. Accordingly, we have referred this matter to the KDLA for inquiry and action as warranted.
We continue to ascribe to the position set forth in 07-ORD-060, 07-ORD-061, and 07-ORD-062 that corrections policies and procedures do not authorize expungement of disciplinary reports, and that KRS 197.025(5) therefore cannot be properly invoked to support denial of such records. These open records decisions are distinguishable from the instant appeal insofar as the denials that precipitated the underlying appeals were postulated on KRS 197.025(5) and not, as here, the nonexistence of the requested record. Recognizing that each of these decisions has been appealed to the appropriate circuit court, we continue to adhere to them in the absence of a published opinion of an appellate court that is clearly contrary to the position set forth therein. "To hold otherwise would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. To hold thus promotes certainty in the application of established legal principle . . . ." 07-ORD-132, p. 7; 06-ORD-230.
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.