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 Lee Adjustment Center (LAC) relative to the request of Gregory Valentine for records related to the disciplinary report against him, violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By letter dated June 23, 2008, Mr. Valentine submitted a request to LAC to inspect:
All records related to disciplinary report against inmate Gregory Valentine (KDOC 163775) by Administrator Linda Nole on or about June 5, 2008.
On June 24, 2008, Betty Shepherd, LAC, denied the request, advising that "[t]he disciplinary report was dismissed and there is to be no record of it.
On the same day as the denial, Mr. Valentine initiated the instant appeal arguing in part that LAC's response fell short of actually denying the records' existence, because the agency claimed only "there is to be no record of it."
After receipt of notification of the appeal, Cole Carter, Assistant General Counsel, Corrections Corporation of America (CCA), provided this office with a response, on behalf of LAC, to the issues raised in the appeal. In his response, he advised:
First, we enclose an affidavit from the custodian, who reiterates that the record no longer exists. She explains that the record was mistakenly destroyed by a LAC staff member. Her conclusion was the result of not only her own search both in the expected and other potential locations for the record, but also her direct inquiry of other LAC personnel with knowledge of the disciplinary process. While we regret the loss, we cannot produce a record which we do not possess and, in fact, no longer exists. A custodian "cannot produce for inspection or copying nonexistent records or those which it does not possess." See 08-ORD-011.
The analysis, as you know, does not end here. We understand that the retention of public records is an important function of public agencies everywhere. This is nowhere more true than in the Commonwealth, see KRS 61.8715 , 05-ORD-141. LAC made a thorough inquiry, and has determined that this event was an anomaly. My understanding is that an employee mistakenly believed that, because the accusation against the appellant embodied by the disciplinary report was without merit and improvidently filed, it should not become part of any permanent record which might reflect negatively on the appellant. In destroying it, the employee did misconstrue both Commonwealth and company policy. That employee has been instructed that the record was improperly destroyed, and we believe the employee will apply policy correctly going forward.
LAC follows extensive records management requirements both promulgated by the Kentucky Department of Corrections and issued by CCA's corporate office. The LAC records office is staffed by qualified custodians, who maintain not only the files and records themselves, but also logs and other records of the records management program. In this case, the record never reached the central file center, and for this reason, it was never filed. In short, we do not believe this error is an indicator of any records management issue which should raise further concern on the part of the Commonwealth.
Second, the appellant raises a host of other issues in his appeal, which we believe stretch far beyond the province of the open records request and the open records appeal you now review. We recognize that the appellant is engaged in an ongoing lawsuit against the Department of Corrections (KDOC), and that some records are at issue in that case. Nevertheless, we will defend against those other accusations in court. We do not concede that any of his other substantive allegations are correct, and we reserve all rights to defense against them in the proper forum.
The LAC advised Mr. Valentine that it did not have copies of the requested records and in its supplemental response explained that they had mistakenly been destroyed by an employee under a misconstruction of Department of Corrections and agency records policy. Obviously, a public agency cannot afford a requester access to a record that it does not have or that no longer exists. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The LAC discharged its duty under the Open Records Act by affirmatively so advising and explaining why it did not have a copy of the requested records. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Moreover, LAC offers a reasonable explanation for the nonexistence of the requested records by demonstrating what efforts were made to locate the records, explaining why the records no longer existed, and the steps it has taken to ensure that destruction of such records would not occur in the future. We do not believe, under these facts, that this appeal warrants further inquiry on this issue by this office or the Department for Libraries and Archives. We therefore affirm the LAC's denial of Mr. Valentine's request on the basis of the nonexistence of the records requested.
Finally, we concur with LAC's position that this office cannot resolve, in the context of an open records appeal, non-open records issues currently raised in the Franklin Circuit Court. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.
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.