Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in the disposition of James Nick Harrison's January 7, 2009, request for copies of forms on which he had requested to share living arrangements with another inmate. For the reasons that follow, we find that EKCC's response was in compliance with the Act.
In his January 7 request, Mr. Harrison requested to inspect and copy "each move-sheet I've turn[ed] in to the CTO within the last five months; also, a copy of each of my transfer authorization forms for my last ten transfers." On January 8, 2009, the EKCC responded with a memorandum from Sonya Wright stating the following:
I received your Open Records Request in my office on the above date. Your request to view move sheets that you turned in to CTOs' [sic] for the past 5 months is denied. Please be advised that there is no public record maintained by the Department of Corrections responsive to your request. ? I checked with Unit Administrators, Shawn McKenzie and Belinda Sparks and both stated that move sheets are only kept on file if a move has been completed. You have no record of any moves being completed within the past 5 months. You were assigned housing unit dorm 8-BU-11 on 07-22-2008 and have not been moved since that date.
Mr. Harrison initiated an open records appeal on January 11, 2009, stating in pertinent part:
An inmate at this agency is required to submitted [sic] a move sheet through their assigned Classification and Treatment Office (CTO) in order to have a move or different cell assignment. The move sheet is a form provided by the agency and usually signed by two inmates in the present [sic] of their assigned CTO. It appears that in some cases, shortly after the inmate (s) signed the form it is destroyed by the accepting CTO or other agency's staff involved in that process.
It is my opinion that EKCC staff involved in the destruction of these official records subverts the intent of the Open Records Act, which as this office has stated in Opinion OAG 94-ORD-121 is essentially related to the intent of the State Archives and Records Act, by failing to develop an adequate program for ensuring records management through agency oversight of employee records handling practices; and by failing to develop a coherent scheme for the organized maintenance of records at identified maintenance locations.
The response to Mr. Harrison's appeal was submitted by Leigh K. Meredith, Staff Attorney, Justice and Public Safety Cabinet, on behalf of EKCC. The response begins by advising as follows:
Mr. Harrison does not raise any issues with the transfer authorization forms in his appeal as he inspected, and later copied, these forms on or about January 8, 2009. [A copy of a form is attached, signed by Mr. Harrison, stating that he "Viewed transfer Authorization forms on 1-8-09."]
With regard to his request for move-sheets, EKCC first notes that the form referenced by Mr. Harrison in his appeal is an internal form used by EKCC also known as a "Double Bunk Agreement Form." ? An inmate in the general population at EKCC may fill out one side of the form and request that the form be provided to another inmate of his choice to see if the second inmate will sign and agree to a double bunk arrangement. The Double Bunk Agreement Form must be filled out in its entirety and signed by two inmates in order to be a completed form. Inmates who agree to a double bunk living assignment must then be approved by the Classification Division at EKCC.
The first argument made in EKCC's response, citing KRS 197.025(1) and KRS 61.878(1)(l), is that allowing inmates access to rejected Double Bunk Agreement forms would pose a security threat. EKCC then reasserts that it did not maintain the uncompleted Double Bunk Agreement forms submitted by Mr. Harrison and that it was within its rights in not doing so.
Although the nonexistence of the requested records is dispositive of the present appeal, we believe the security issue raised by EKCC is significant enough to warrant discussion. KRS 197.025(1) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
This section affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. EKCC argues as follows:
[R]eleasing a denied, incomplete double bunk agreement to an inmate creates a security risk for hostile retaliation between inmates ? [A] denied Double Bunk Agreement Form can create a very heated, tense or even violent situation between inmates at the same institution. If an inmate requests a double bunk assignment and the other inmate refuses to sign the form, the second inmate generally cites the reason for the denial on the form. Depending on the reason for the denial, the EKCC warden or his designee may deny access to these records to protect the safety of the other inmates and institution pursuant to KRS 197.025(1). Thus, Mr. Harrison's request for all his denied inmate move-sheets qualified as a security threat?
In the alternative, the undersigned counsel discussed with the EKCC staff that if this type of request is presented in the future, the institution may redact any information or statements from the second inmate denying the Double Bunk Agreement request if the information constitutes a security threat under KRS 197.025(1). The decision whether to deny or redact under KRS 197.025(1) should rest within the discretion of the commissioner, warden or the designee.
We agree that the situation described could reasonably be deemed to involve security risks for hostile incidents between inmates, and that the broad discretion of the commissioner or designee under KRS 197.025(1) would include the decision whether to deny or redact these documents if they contain potentially inflammatory material. 1
In this case, however, the crucial fact is that the incomplete Double Bunk Agreement Forms were not retained by the institution. The fact that these records were destroyed or discarded would not cause EKCC's response to violate the Open Records Act per se, because 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. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. In this case, however, the documents existed at one time but were destroyed by the public agency.
The Kentucky Open Records Act was substantially amended in 1994. As Mr. Harrison points out, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. On this subject, EKCC has first cited Department of Corrections Policy and Procedure:
As incorporated in 501 KAR 6:020, Corrections Policy & Procedure (CPP) 18.1, II, A, subsections 2 and 3 respectively state that the goal of the classification process is to "[e]nsure the safety of the staff, the institution and inmates by proper housing, program assignment, work assignment, and custody level; and "[a]ssign program and work activities for the inmate according to assessed needs and the availability of resources." CPP 18.1, II, A, 5 states that the goal is also to "document program and security decisions affecting the inmate's custody level, program participation and completion, housing assignment, work assignment, and disciplinary or adjustment actions." [Emphasis Added].
It is important to note DOC/EKCC policy does not require the institution to maintain incomplete inmate double bunk agreements. CPP 18.1, II, D, b, 5 supports the requirement to "document program and security decisions affecting the inmate's ? housing assignment...." but does not require maintenance of partially completed forms. EKCC maintains that CPP 18.1 does not require the institution to maintain copies of incomplete inmate double bunk agreements (move sheets) .
(Emphasis in original.) By this discussion, EKCC appears to argue that an incomplete Double Bunk Agreement Form does not represent a "decision" by EKCC. It could be argued, to the contrary, that the second inmate's refusal to sign the agreement is documentation of the basis for a "decision" not to move the first inmate. The fact remains, however, that it would not be a "decision[] affecting the inmate's housing assignment" (emphasis added), because the result would be to leave the housing assignment unaffected. Accordingly, EKCC did not act in a manner demonstrably contrary to Department of Corrections policy when it failed to retain these documents.
EKCC additionally cites the applicable records retention schedules and argues as follows:
The Department of Corrections Records Retention Schedule also does not require or reference a "Double Bunk Agreement Form" (AKA move sheet) in the list of records that must be maintained by the institution under the set timeframes. In reviewing the General Schedule for State Agencies, the undersigned counsel also notes that the move-sheet Inmate Harrison requested may be properly characterized as General Correspondence, Record Series No. M0002, which the disposition instructions specify must be retained by the agency for no longer than two (2) years. However, it is unclear as the requested records were an incomplete internal institutional form.
(Footnote omitted.) As the Attorney General has previously noted, "general correspondence" (also known as "routine correspondence" ) is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency, ? which are better documented by other records maintained by the agency." (See Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0002.) It is in the nature of a "tool[] which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626. It has an indefinite retention period, but may be retained "no longer than two years." Id. Discretion rests with the agency and user to determine whether general correspondence need be retained. No requirement exists for the permanent archiving of these records. 00-ORD-132.
Since an incomplete Double Bunk Agreement Form does involve written correspondence between an inmate and the institution and is of a non-policy nature, it is not altogether unreasonable for EKCC to treat such documents as "general correspondence. " We therefore do not find that a clear misapplication of the applicable records retention schedules occurred in this case. Nevertheless, since this form is used on a regular basis and appears to be unique to EKCC, the better course of action would be for the Department to schedule a specific time frame for destruction of these records. We encourage the Department of Corrections to contact the Department for Libraries and Archives for any needed assistance in scheduling its records.
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 proceedings.
Distributed to:
James Nick HarrisonSonya WrightLeigh K. Meredith
Footnotes
Footnotes
1 It would even seem justified to deny inmates' inspection of all refused Double Bunk Agreement Forms, in the event that the commissioner should deem selective denial or redaction likely to raise inmates' suspicion that any withheld content must be of an insulting or provocative nature.