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 Western Kentucky Correctional Complex ("WKCC") violated the Kentucky Open Records act in its disposition of the request of inmate Ricky Fulcher for a copy of Corrections Policies and Procedures ("CPP"). We conclude that the actions of WKCC were in accordance with the Act.
Mr. Fulcher made a written request dated September 14, 2009, for the following:
A copy of the policy and/or procedure that authorizes KDOC [Kentucky Department of Corrections] staff to re-write a Disciplinary Report upon the Adjustment Committee ordering a re-investigation. Due to the fact CPP 15.6 does not contain the words RE-WRITE and give no such authority.
Mr. Fulcher's request was received September 16, 2009. WKCC's response came from Offender Records Custodian Klaytor Burden on September 22, 2009, stating as follows:
CPP 15.6 contains information about adjustment committee proceedings -- and on page 4 letter F it states per policy the disciplinary report may [be] sent back for corrections/ changes/or complete change per policy 15.6 -- also for a more appropriate charge none of these are prohibited [sic]
We note at this point that from Mr. Fulcher's request it appears he was already in possession of CPP 15.6. This response, therefore, does not appear to be a direct denial of inspection so much as an interpretation of CPP 15.6; however, it gives no indication as to whether any other applicable policies exist.
Meanwhile, Mr. Fulcher made another request dated September 21, 2009, and received the following day, stating:
I would like a copy of Part-II of the Disciplinary Report charging Ricky Fulcher #162001 with Category 4-2, Date and Time of Report: 4-17-09/4:28PM, Reporting Employee: Sgt. Steve Meredit, Supervisor's Review-Name: Capt. Mark McCalister, Date and Time of Incident: 4-12-09/8:45 pm.
Mr. Burden replied on September 22, 2009:
Per CPP 15.6 page 4 letter "F" if the adjustment officer feels the charge is not proper prior to the hearing it may be sent back to the investigator for a more appropriate charge. You supplied me with Part I of a write-up which you'll find attached, this document was not sent to committee and there is no part II.
On September 28, this office received from Mr. Fulcher a joint appeal from the disposition of these two requests. The September 21 request was duplicative of a portion of an earlier request from Mr. Fulcher with which we dealt in 09-ORD-177. Accordingly, in the present appeal, we consider only the disposition of the September 14 request.
Mr. Fulcher's appeal on this issue appears to be partially an argument about the meaning of CPP 15.6:
The Disposition states: "CPP 15.6 authorizes the report to be sent back for corrections/ changes/or complete change ? also for a more appropriate charge...". That constitutes a re-investigation, not a re-write of a subsequent Disciplinary Report. If there is no such policy, then Corrections needs to state it does not exist.
WKCC replies, per Staff Attorney Stafford Easterling, Justice and Public Safety Cabinet, that under KRS 197.025(2) Mr. Fulcher is not entitled to view policies or procedures because they do not mention him by name, and that pursuant to KRS 197.025(6) any policies responsive to Mr. Fulcher's request would be secured policies exempt from disclosure. Mr. Easterling does not mention whether there are any such secured policies. "However," he states, "Fulcher may review nonsecured policies [presumably including CPP 15.6] in the law library."
If there are no other policies or procedures responsive to Mr. Fulcher's request, then WKCC did not substantively violate the Act. 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 this case, however, WKCC did not affirmatively state this to be the case and still has not done so. The initial response therefore did not discharge WKCC's duty if no further records existed. See, e.g., 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and ? it is incumbent on the agency to [state their nonexistence] in clear and direct terms ? . While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient").
Since the existence or nonexistence of any additional applicable policies still has not been made clear, we must also proceed with an analysis on the premise that some responsive records did exist. KRS 197.025(2) provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, the [D]epartment [of Corrections] shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
The Attorney General has consistently interpreted this provision as supporting the Department's position that only documents mentioning the inmate by name need be provided. 05-ORD-130; 03-ORD-073; 99-ORD-157; 98-ORD-150. Since any responsive policies and procedures do not mention Mr. Fulcher specifically, KRS 197.025(2) is dispositive of this appeal. Furthermore, accepting the agency's representation that any such policies and procedures would fall within the scope of KRS 197.025(6), those records would be exempt from inspection as records made confidential by the General Assembly, pursuant to KRS 61.878(1)(l). 05-ORD-055.
We accordingly find no substantive violation of the Open Records Act. Procedurally, however, WKCC's initial response should either have indicated that no responsive records existed or, otherwise, have relied upon KRS 197.025(2) and (6) and explained their application to Mr. Fulcher's request. By failing to make a direct substantive response to the request, WKCC committed a procedural violation of KRS 61.880(1).
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.