Request By:
James Carl Higgs # 084908
Amy V. Barker, Esq.
Tandy Wells
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 Roederer Correctional Complex (RCC) violated the Open Records Act in the disposition of James Carl Higgs' May 5, 2009, request for copies of reports and photographs concerning him. For the reasons that follow, we find that RCC's response was not substantively in violation of the Act but raises some concerns about RCC's records management practices.
In his May 5 request Mr. Higgs sought to inspect the following:
Photographs taken of my booking on either the 13th or 14th of August 2006. I was brought to the Roederer Correctional Complex by TransCor America. The booking officials obsereved [sic] bruises and lacerations on my body and face during the booking and made pictures depicting those injuries. Also, I believe the booking officers made reports relating to what they observed.
In RCC's initial response to Mr. Higgs' request, the custodian stated: "The above requested information can not be located at this time."
Mr. Higgs initiated an open records appeal on June 24, 2009, in which he explained that he needed the records for evidence in a federal lawsuit and stated: "It is my understanding and belief that booking information is retained at RCC and fed into the Offender Information Services Computer Data Base used throughout the Department of Corrections (DOC)."
RCC's response, submitted by Assistant General Counsel Amy V. Barker, states in part as follows:
For the response to the request, RCC staff made inquiries of a number of RCC staff who were most likely to have knowledge of the location of the requested records. None of the staff had the requested records or was aware of the records. The response indicated that the requested records could not be located. Mr. Higgs was incarcerated at the Kentucky State Reformatory (KSR) at the time of his request.
In response to the appeal, a search was made of Mr. Higg[s'] inmate file at KSR. Two detention orders and three reports from the Christian County Jail were located in the inmate file at KSR. An ID photo of Mr. Higg[s'] head with his inmate number was also located in the inmate file. It does not appear that this photo is what Mr. Higg[s] seeks in his request. ?
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A search was again made for the requested records at RCC as well. A Captain who formerly worked in Internal Affairs indicated that a file concerning Mr. Higgs should be located in storage. The file could not be located in storage. RCC has been unable to determine whether the additional requested records exist in the file?
RCC acknowledges that it should have referred Mr. Higgs to the Open Records Coordinator at KSR in the initial response for part of the records. The staff person thought that Mr. Higgs would have already made the request for records in his inmate file at the institution in which he was incarcerated. RCC has been reminded to provide the additional custodian information in the future.
Ms. Barker also presents arguments for why the ID photo located at KSR should be exempt from disclosure; however, since that photo was not the subject of Mr. Higgs' request, we do not deem those issues ripe for consideration in the present appeal.
In effect, RCC acknowledges that the requested records (or at least a file on Mr. Higgs) should exist in storage at RCC, but cannot be found. A public agency "must expend reasonable efforts to identify and locate the requested records." 95-ORD-96. It appears that despite reasonable efforts RCC has been unable to locate its stored records. While we cannot find a substantive violation of the Open Records Act, this gives cause for concern about RCC's records management practices.
In its 1994 amendments to the Kentucky Open Records Act, 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. RCC's inability to locate its file on Mr. Higgs raises records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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.