Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the issues on appeal arising from three of the four denials issued by Northpoint Training Center to Bryant Pendleton in response to his requests for "copies of phone calls" are time barred. It is the position of this office that 02-ORD-54, interpreting KRS 197.025(3), is dispositive of these issues. A copy of the decision is attached hereto and incorporated by reference. See also, 04-ORD-087; 05-ORD-089; 06-ORD-015; 08-ORD-209. That statute provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
Because Mr. Pendleton did not appeal NTC's denials of his November 25, 2008, and December 18, 2008, requests within twenty days of the denials, we are foreclosed from reviewing NTC's denials of those requests.
Mr. Pendleton's appeal of NTC's June 2, 2009, denial of his May 21, 2009, request for May 2007 phone calls, which reached this office on June 18, 2009, is not time barred. Nevertheless, we find no error in NTC's disposition of that request based on the analysis contained in 05-ORD-089. A copy of that decision is attached hereto and incorporated by reference. There we addressed a correctional facility's denial of an inmate request for phone recordings on the basis that they were automatically deleted by the phone system six months after they were recorded, recognizing that the facility could "not afford a requester access to a record that it does not have or which does not exist." 1 05-ORD-089, p. 5. Such is the case in the appeal before us, and we therefore find no error in NTC's denial of this request.
To the extent Mr. Pendleton's request can be construed as a request for a telephone log reflecting the fact that phone calls were placed on these dates, but not the content of the calls, we find 07-ORD-218 controlling. A copy of that decision is attached hereto and incorporated by reference. Although NTC did not construe Mr. Pendleton's request as one seeking telephone logs, 07-ORD-218 establishes that if the facility exercised its prerogative in favor of creating such a log, the log would be subject to a six year retention requirement per Records Series 05577 of the Department of Corrections Records Retention Schedule. 2 We assign no error in this regard.
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:
Bryant Pendleton, #143847Andrea M. WindsorAmy V. Barker
Footnotes
Footnotes
1 Although it is not altogether clear, it appears that Mr. Pendleton's request was directed at the recordings of the phone calls and not the logs of these calls.
2 A copy of the pertinent portion of the records schedule is enclosed.