Request By:
Michael Grant, # 108374
Marc Abelove
Leigh K. Meredith
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 State Reformatory violated the Kentucky Open Records Act in the disposition of Michael Grant's request for the "Correctional News Address," a copy of his June 16, 2008, Adjustment Committee Appeal, and a copy of his "Disciplinary Report-Part II-Hearing." By letter dated June 26, 2008, Mr. Grant initiated this appeal challenging the apparent refusal of KSR Offender Information Supervisor Laura Vestal to respond upon receipt of his written request. Although this office is unable to conclusively resolve the factual issue presented, the ultimate disposition of Mr. Grant's request is hereby affirmed in accordance with 501 KAR 6:020, CPP 6.1, KRS 197.025(2), and prior decisions of this office, including 08-ORD-050 and 04ORD-076.
Upon receiving notification of Mr. Grant's appeal from this office, Leigh K. Meredith, Staff Attorney for the Department of Corrections, responded on behalf of the KSR, initially advising that "the KSR never received an open records request from Mr. Grant dated June 19, 2008." Citing KRS 61.872(2), Ms. Meredith contends that since the KSR "never received this request, there is no basis for the Attorney General to conclude that the KSR violated the Open Records Act. " In support of this position, Ms. Meredith attaches a copy of a sworn affidavit from March Abelove, KSR Offender Information Specialist, advising that "in the absence of the Offender Information Supervisor Laura Vestal, who is on vacation this week, I am the designated open records coordinator for KSR offender records." In this capacity, Mr. Abelove keeps "a log of open records requests for offender records received by the KSR." Having reviewed Mr. Grant's allegations, and the KSR Open Records Log for June 1, 2008, through July 10, 2008, Mr. Abelove found "no record of having received the alleged June 19, 2008 open records request set forth in Mr. Grant's letter" of appeal.
Notwithstanding the fact that KSR has no record of ever having received a request from Mr. Grant dated June 19, 2008, Ms. Meredith advises that "an open records request, from an inmate, does not by itself satisfy the procedures in 501 KAR 6:020, Corrections Policies and Procedures (CPP) 6.1." In addition to his request, an inmate such as Mr. Grant "must submit an Inmate Authorization Form, signed by his caseworker, for pre-payment of copies under CPP 6.1." As Ms. Meredith correctly observes, the Attorney General has upheld the DOC policy of requiring pre-payment for copies in a line of decisions, a recent example of which is 08-ORD-044, from which she quotes an excerpt relating to KRS 61.874(1) and Friend v. Rees, Ky. App., 606 S.W.2d 325 (1985). In order to complete his request, Mr. Grant is required to "attach an 'Inmate Money Authorization', signed by his caseworker, by 'institutional mail to the coordinator or first class regular mail to the custodian of agencies [sic] records.' CPP 6.1, Category II, Section B, 2."
If Mr. Grant wishes to resubmit his request (along with an Inmate Authorization Form signed by his caseworker) , "he would be entitled to obtain copies relating to any disciplinary reports containing a specific reference" to him. However, the KSR contends that "he would not be entitled to a copy of the 'Correctional News Address.'" In support of this position, Ms. Meredith correctly relies upon KRS 197.025(2). 1 Consistent with prior decisions, the disposition of Mr. Grant's request is affirmed.
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. Grant's request for this office to conclusively resolve the related factual issue. However, a public agency such as the KSR cannot respond to a request which it does not receive and the limited evidence lends credibility to the agency's position. See 05-ORD-222; 03-ORD-052. Absent objective proof to validate Mr. Grant's position, this office cannot determine that the KSR 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, the KSR was entitled to deny access, even assuming the request was received, to the extent Mr. Grant 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, including a signed Authorization to Use Inmate Account Form. CPP 6.1.VI.B.2. See 06-ORD-078; 04-ORD-004. On this issue, 08-ORD-050, a copy of which is attached hereto and incorporated by reference, is controlling. Insofar as the Attorney General is unable to resolve the factual issue, and the KSR has agreed to honor Mr. Grant's request as to records containing a "specific reference" to him upon receipt of the requisite documentation, this office finds that no violation occurred.
In light of this determination, the remaining question is whether the KSR properly relied upon KRS 197.025(2) in partially denying Mr. Grant's request. In our view, the analysis contained in 04-ORD-076 is determinative on the facts presented; a copy of that decision is attached hereto and incorporated by reference. As consistently recognized by the Attorney General, KRS 197.025(2) expressly authorizes correctional facilities like the KSR to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the "Correctional News Address" apparently does not contain a specific reference to Mr. Grant, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of that record, notwithstanding his underlying concerns. Regardless of the hardship Mr. Grant may believe that application of KRS 197.025(2) imposes, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; 2 accordingly, the KSR properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in ultimately denying this portion of Mr. Grant's request. 99-ORD-161, p. 2.
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 Noticeably absent is any specific reference to the "Adjustment Committee Appeal" Mr. Grant also requested. Insofar as the document presumably contains a "specific reference" to him, this office assumes that Mr. Grant will be provided with a copy of it as well upon compliance with CPP 6.1.
2 In any event, Mr. Grant advises the Attorney General that he was "informed by staff," and he "already know[s] the address," in a letter dated July 15, 2008. Although Mr. Grant also contends that his "name, number, [and] complete address" appear in this publication, the record is devoid of any objective proof to substantiate this assertion. Absent such evidence, this office must affirm the agency's denial on the basis of KRS 197.025(2).