Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Western Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Gregory Valentine's written request for "the name, office address, and telephone number of the employee or employees designated to coordinate and carry out WKCC's responsibilities under the Americans with Disabilities Act and all information stipulated by 28 CFR 35.105(c)." Although Mr. Valentine requested information, rather than existing public records, WKCC partially honored his request by providing him with the name and contact information of the specified employee. Because none of the responsive documents would contain a "specific reference" to Mr. Valentine, WKCC properly relied upon KRS 197.025(2), incorporated into the Act by operation of KRS 61.878(1)(l), in ultimately denying the remainder of his request. 1
In a timely written response, Klaytor Burden, Records Custodian, advised Mr. Valentine that "Tammy Mitchell is the contact you've requested; she is employed by the WKCC and located in the programs building here on the compound." Mr. Burden also provided Mr. Valentine with Ms. Mitchell's address and telephone number as requested. Acknowledging that he was provided with "a portion of the information sought," but "Mr. Burden neither permitted me to inspect nor denied the existence of those records pertaining to 28 CFR 35.105(c)," 2 Mr. Valentine subsequently initiated this appeal.
Upon receiving notification of Mr. Valentine's appeal from this office, Amy V. Barker, Assistant General Counsel, elaborated upon the position of WKCC as follows:
Mr. Valentine's request was a request for information. The requested information was provided to him by WKCC even though Open Records law does not require that an agency provide information rather than records. KRS 61.872(3)(b). The Attorney General's Office has determined that requests for information are outside the scope of the Open Records Law and an agency is not obligated to honor a request for information under the law. 07-ORD-065, pp. 1-2; 02-ORD-88, p. 2; 00-ORD-07, p. 3. 3
WKCC should have also asserted the exemption provided by [KRS] 61.878(1)(l) and KRS 197.025(2). Any records associated with 28 C.F.R. §§ 35.105 or 35.107 are not the type of record in which a specific reference would be made to Mr. Valentine. KRS 197.025(2) expressly authorizes correctional facilities like [WKCC] to deny a request by an inmate unless the record(s) contain a specific reference to that inmate. " 07-ORD-271, p. 3. The Department of Corrections is not obligated to allow inspection of records when they do not contain a specific reference to the inmate who requests the inspection. The Attorney General's Office has held that 04-ORD-076 and 03-ORD-073 are controlling on this issue. See 07-ORD-271, 07-ORD-219.
Counsel has also been informed that at least part of the requested records does not exist. A public agency cannot afford a requester access to a record that it does not have or which does not exist. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150. None of the records may exist. An extensive search for all of the records has not been made since Mr. Valentine is not entitled to the records for other reasons as well.
Although Ms. Barker's response is correct in its entirety, KRS 197.025(2) is controlling here; thus, further consideration of the remaining arguments is unwarranted.
With regard to application of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the analysis contained in 04-ORD-076 and 03-ORD-073 is controlling; a copy of each decision is attached hereto and incorporated by reference. As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes correctional facilities like WKCC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the records at issue do not contain a specific reference to Mr. Valentine, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Valentine 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; accordingly, WKCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying his request. 99-ORD-161, p. 2. See also 08-ORD-181; 07-ORD-219; 03-ORD-074.
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.
Gregory Valentine, # 163775Klaytor BurdenAmy V. Barker
Footnotes
Footnotes
1 Insofar as WKCC initially failed to cite this exception, the agency violated KRS 61.880(1); however, this office will not belabor the issue given that WKCC has admitted this error on appeal.
2 Although 28 C.F.R. § 35.105(c) provides that a "public entity that employs 50 or more persons shall, for at least three years following completion of the self-evaluation [of "services, policies, and practices, and the effects thereof," relating to "Nondiscrimination on the Basis of Disability"] maintain on file and make available for public inspection" a list of specified information, the issue of whether WKCC has complied with this mandate is beyond our narrow scope of review under KRS 61.880(2)(a). In any event, KRS 197.025(2) is controlling on the facts presented.
3 A public agency "cannot produce for inspection or copying records which do not exist, nor is [a public agency] statutorily required to honor a request for information or compile a list/create a record to satisfy a request,"; however, a public agency is "obligated to make any existing nonexempt records which are potentially responsive to [a] request available for inspection during normal office hours if [the requester] wishes to exercise this option. 07-ORD-042, pp. 1-2 (emphasis added). Here, WKCC did more than was required in providing Mr. Valentine with some of the requested exempt information, and the existing records in dispute are exempt.