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 Louisville Metro Department of Corrections (Metro Corrections) relative to Christopher Scoggins' request for certain Metro Corrections records related to him violated the Open Records Act.
By letter dated September 13, 2008, Mr. Scoggins submitted the following request to Metro Corrections asking for copies of the following records:
1. The activity log for August 13, 2008 for any item relating to Christopher Scoggins and any officer of the Louisville Metro Police Department.
2. A copy of the mug shot taken when booking occurred.
3. A copy of the inventoried items that were sent to the property room or any other location to be held on behalf of Christopher Scoggins.
4. A copy of the call log of phone logs made by Christopher Scoggins from the jail
5. A copy of any medical testing from Christopher Scoggins while incarcerated to check for levels of the drug Morphine, and if such exists, please include all other medical information in any media form in which it exists.
6. Any document indicating the time released from incarceration.
7. A list or log of other persons booked for a crime that would have been in the same locations where Christopher Scoggins was held until release. . . . [and] information given to pre-trial services for each of those persons.
In a response to Mr. Scoggins' request, Laura McKune, Deputy Director, Metro Corrections, denied request 1, advising Mr. Scoggins that the requested record did not exist and requests related to the operation and/or activity of the Louisville Metro Police Department should be directed to that agency. Ms. McKune further advised that the records requested in requests 2 and 6 would be provided upon receipt of copying costs and that the record identified in request 3 would be provided to him upon receipt of a notarized release of information and copying costs. Ms. McKune denied request 4 explaining that such record did not exist because phone calls are not tracked by individual names. Mr. Scoggins' request for his medical records in request 5 would be provided if they exist upon receipt of a notarized release of information and prepayment of copying costs. Finally, Ms. McKune indicated that records responsive to request 7, if they exist, would be provided upon payment of copying costs but noted that Pre-Trial Services was a separate agency from Metro Corrections and requests for specific information from Pre-Trial Services should be made to that agency. In closing, Ms. McKune advised Mr. Scoggins that upon receipt of the release of information someone from Metro Corrections would contact him and make arrangements for payment and release of the requested records.
KRS 61.872(3) (b) provides that public agencies must:
Mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
Additionally, KRS 61.874(1) provides:
When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
(Emphasis added.) In construing these provisions, the Attorney General has observed:
The Act is a double-edged sword. Although it guarantees the public the right to inspect nonexempt records, it mandates that as a precondition to inspection a requester must comply with certain procedural requirements, including submission of a written request and prepayment for copies. As we have noted, we believe that the Act was never intended to frustrate access to records, and that an agency is statutorily obligated to provide a requester with timely access at a reasonable fee. Nevertheless, we also believe that an agency is justified in enforcing the procedural requirements of the Act.
96-ORD-7, pp. 4, 5. This includes the requirement of prepayment for copies of records transmitted by mail. See also 96-ORD-226; 99-ORD-30. The statute contains no provision for waiver of the prepayment requirement for any requester. We find no error in the Department's decision to condition release of nonexempt public records on the prepayment of copying costs.
With respect to numbered requests 2, 3, 5, 6, and 7, Metro Corrections advised Mr. Scoggins that he would be provided these records on prepayment of copying costs. 40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Since Mr. Scoggins will be provided with copies of these records, upon prepayment of copying and mailing costs, the issue as to access to these records in all other material respects is moot.
However, Metro Corrections cites no statutory or regulatory basis for requiring a notarized release of information before release of the records identified in request 3 and the medical records requested in request 5. In 08-ORD-224, we held that the Marion Adjustment Center properly relied on that section of CPP 6.1 restricting inmate access to records that pertained to the inmate, stating that to the extent that the section of CPP 6.1 corresponded to a statutory enactment, KRS 197.025(2), the section provided a legitimate basis for denying the request. Citing
Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), we noted that the Kentucky Supreme Court held that the CPP, which is incorporated by reference at 501 KAR 6:020, "provides no relief to the DOC . . . because it purports to add a requirement not found in the statutes," noting that DOC "cannot by its rules or regulations, amend, alter, enlarge or limit the terms of legislative enactment." Chestnut at 662, citing
Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000) and
Brown v. Jefferson County Police Merit Board, 715 S.W.2d 23 (Ky. 1988). Absent a statutory requirement or a corresponding regulation requiring requesters to furnish a notarized release of information before release of records, Metro Corrections adds a requirement not found in a cited statute in contravention of the Court's holding in Chestnut. 08-OMD-224.
Addressing numbered request 1, Metro Corrections affirmatively advised Mr. Scoggins that it did not have an activity log pertaining to him and any officer of the Louisville Metro Police Department. Metro Corrections further advised him that requests for records related to the operation and activities of the Police Department should be directed to that agency. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Metro Corrections discharged its duty under the Open Records Act by affirmatively advising Mr. Scoggins that it did not have a copy of the vehicle inventory and registration information identified in request 1. 99-ORD-150.
Moreover, KRS 61.872(4) 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.
As noted above, Metro Corrections advised Mr. Scoggins that it did not have records related to the operation and activities of the Louisville Metro Police Department and notified him that he should address his request to that agency. This was in substantial compliance with the requirements of KRS 61.872(4). 03-ORD-225. Accordingly, we find no violation of the Open Records Act in this regard.
By the same token, with respect to request 7, Mr. Scoggins was advised that requests for records and information related to pre-trial services should be made to Pre-Trial Services, a separate agency from Metro Corrections. This, too, was in substantial compliance with the requirements of KRS 61.872(4).
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. Distributed to:
Christopher ScogginsTom CampbellLaura McKune