Request By:
John Carter, # 199657-479A
Mike Huff
Cole Carter
Emily Dennis
Daniel Akers
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Marion Adjustment Center violated the Kentucky Open Records Act in failing to respond upon receipt of John Carter's request to inspect "ONLY any and all classif[i]cation sheets in my Inmate File." By letter dated February 11, 2008, Mr. Carter initiated this appeal challenging the alleged inaction of MAC relative to his request "to inspect my file." Upon receiving notification of Mr. Carter's appeal from this office, Assistant Warden Daniel Akers responded on behalf of MAC, advising that he does not have "that particular copy [request] on file." In addition, the copy of Mr. Carter's request included with his appeal does not have a "date received" stamp "which provides that it was not received by the Coordinator in administration." According to Warden Akers, MAC "has in no way denied or refused to comply with" Mr. Carter's request. All requests "must be received by the coordinator in administration as they are date[] stamped when received and then processed within the mandated time frame." Therefore, Mr. Carter "may resubmit his request using the appropriate process mandated by policy. Upon receipt it will then be completed pursuant to policy by giving him in the response a date and time he will meet with the Records Supervisor to inspect his file." In other words, MAC has agreed to honor Mr. Carter's request after he complies with 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1.VI.B.2.; nothing more is required.
As in 07-ORD-178, 05-ORD-013, and 03-ORD-061, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of Mr. Carter's request for this office to conclusively resolve the related factual issue. However, a public agency cannot respond to a request which it does not receive and the limited evidence of record supports Warden Akers' assertion. See 03-ORD-052. Absent objective proof to validate Mr. Carter's position, this office cannot determine that MAC violated the Act from a procedural standpoint by failing to respond; accordingly, this office makes no finding in that regard. In sum, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statutory mandate. That being said, MAC was entitled to deny access, even assuming the request was received, to the extent Mr. Carter failed to comply with CPP 6.1, which, in relevant part, requires inmates to provide certain identifying information and submit requests by institutional mail to the Open Records Coordinator. CPP 6.1.VI.B.2. See 06-ORD-078; 04-ORD-004.
In our view, 05-ORD-222 and 05-ORD-228 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. As previously recognized by the Attorney General, 501 KAR 6:020, CPP 6.1.VI.B.2. was adopted by the Department of Corrections in a proper exercise of its discretion under KRS 197.025(1), for the legitimate purpose of maintaining order and security at institutions such as MAC, and the Attorney General has consistently declined to substitute his judgment for that of correctional facilities or the DOC in this area. 05-ORD-228, p. 5. Because the instant appeal presents no reason to depart from the approach historically taken by this office, the same result necessarily follows. In short, MAC did not violate the Open Records Act in advising Mr. Carter that he is required to comply with CPP 6.1.VI.B.2. though MAC did fail to specify the "policy" upon which it was implicitly relying.
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.