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 Department of Corrections, Division of Probation and Parole, violated the Open Records Act in the disposition of Eric Cunningham's July 9, 2009, request for copies of various records from Lexington-based Probation and Parole Officer John J. Pantano. For the reasons that follow, we find that the Department did not violate the Act.
In his July 9 request Mr. Cunningham asked "to inspect the following records":
1. Report sheet filled out on the 28th day of May 2009.
2. Sign in log of May 28th 2009 at appx 9:00 providing my name date and time.
3. Memo circulated by yourself pertaining to the use of your cell phone.
4. Report sheet and papers left on 5-28-09
5. Notes made or logged in computer concerning Eric Cunningham from time you supervised him.
After receiving no response, Mr. Cunningham initiated an open records appeal on July 23, 2009.
The Department's response, submitted by Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, states in part as follows:
Counsel has been informed that the open records log was reviewed and a search was made for the July 9 request and there was nothing to indicate that it was received by the Probation and Parole Officer to whom it was addressed or his office.
At the time the letter was written by Mr. Cunningham, he was incarcerated at the Fayette County Detention Center. He requested to inspect various documents that were maintained at a Probation and Parole Office in Lexington and not where he was incarcerated. Because Mr. Cunningham is now incarcerated at Roederer Correctional Complex, he cannot inspect records outside of his facility. ? Mr. Cunningham is not entitled to inspect records at a Probation and Parole office when he is incarcerated.
Ms. Barker indicates how Mr. Cunningham may make a request for copies of the records, including the cost of such copies, and also presents statutory arguments for why certain items will be redacted or withheld in the event that Mr. Cunningham makes such a request. Since the record on appeal does not indicate that a request for copies has been made, we do not deem those issues ripe for consideration in the present appeal.
Having no grounds to question the Department's representation that Mr. Cunningham's request was never received, we find no procedural violation of the Open Records Act arising from the Department's failure to respond. We therefore turn to the substantive argument that Mr. Cunningham is not entitled to inspect the Probation and Parole records in person due to his confinement. Previous decisions of the Attorney General have established that an inmate cannot exercise the right of on-site inspection at a public agency other than the facility in which he is confined. 95-ORD-105 (copy attached), which is directly on point on this matter, is hereby adopted and made a part hereof by reference.
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.