Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Kentucky Parole Board relative to the open records request of Johnny Penn for a copy of HB 72 violated the Open Records Act. For the reasons that follow, we find the actions of the Parole Board did not violate the Act.
In his letter of appeal, dated April 16, 2008, Mr. Penn asserts that the Parole Board did not respond to his April 7, 2008, open records request in which he requested "a copy of the provisions of House Bill '72' where the Governor Steven L. Beshear, asked the parole board, or should I say the DOC, to review all technical parole violations . . . ."
After receipt of Notification and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised that she was unable to determine whether the Parole Board actually received the request that Mr. Penn allegedly made. She further advised:
Upon my review of the Kentucky Legislative summary of House Bill 72 to prepare this response, it is also clear that HB 72 has nothing to do whatsoever with the Parole Board, as alleged by Mr. Penn (see attached summary of HB 72). Finally, the Kentucky Parole Board is not the custodian of legislative records such as House Bill 72. Legislative records are maintained by the Legislative Research Commission, Room 300, State Capitol, 700 Capitol Ave., Frankfort, KY 40601. Therefore, Mr. Penn should address future requests for legislative records to the Legislative Research Commission instead of the Parole Board.
We are asked to determine whether the actions of the Parole Board violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
We address first Mr. Penn's claim that the agency failed to respond to his open records request. In her response, Ms. Dennis advised that she was unable to determine whether the Parole Board ever actually received Mr. Penn's request. Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Penn's open records request, thus, we make no finding in this regard. See 03-ORD-061; 05-ORD-013.
We next address the Parole Board's response to Mr. Penn's request. In her response to this office, with a copy to Mr. Penn, Ms. Dennis advised that the requested records, if they exist, would not be in the Parole Board's custody and control, but rather located in the Legislative Research Commission. She then provided the address of the Legislative Research Commission where legislative records are maintained and where Mr. Penn could obtain, if it exists, the record he sought. The Parole Board's response was in substantial compliance with KRS 61.872(4), which 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.
Accordingly, if he has not already done so, Mr. Penn should submit his open records request to the Legislative Research Commission to obtain the legislative records relating to parole which he seeks.
A party aggrieved by this decision may appeal it by initiating an 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.