Request By:
Ricky Fulcher, # 162001
Jeannie Gooud
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether KCI Paducah violated the Open Records Act in the disposition of Ricky Fulcher's requests for documentation relating to an incident that occurred on April 12, 2009, involving possession of dangerous contraband. For the reasons that follow, we find that KCI's responses to Mr. Fulcher's requests were procedurally deficient but substantively correct.
On September 14, 2009, Mr. Fulcher requested copies of:
the extraordinary occurrence report filed pursuant to Ky. Corrections Policy CPP 8.6, and E.O.R. notification to the Kentucky State Police pursuant to Policy CPP 8.7, that recorded Ricky Fulcher, # 162001, on April 12, 2009, in Possession of Dangerous Contraband.
In his request, Mr. Fulcher noted that CPP 8.7 requires notice to the Kentucky State Police and not the city or county police. He received no response to this request. Mr. Fulcher submitted a second request to KCI on September 29, 2009. Because he initiated this appeal on the same date, any issues relating to that request are not ripe for review by this office. Some of the issues relating to the September 29 request/appeal were resolved in an October 14, 2009, meeting at Western Kentucky Correctional Complex between Mr. Fulcher and Assistant Director Ed Hall. Their conversation is documented in KCI's October 15 letter to this office, a copy of which is attached to this decision. We address only those issues arising from his September 14 request.
In the referenced October 15 letter, KCI Director Jeanne Gooud explained that the "occurrence report on former Security Monitor, Jeff Clay finding the alleged crack pipe in the trash can . . . does not exist." She indicated that "the pipe was found by former staff members Jon Griggs and Chad Hawkins . . . [and] [Mr. Fulcher] has been provided with these reports." With reference to the "E.O.R. notification to the Kentucky State Police," Ms. Gooud advised that "no report was filed with KSP . . . because it is [KCI's] policy to only notify the KSP in the event of an escape." She stated that the Paducah Police Department was notified, but that "they did not do a report." While these actions may not have conformed to Kentucky Corrections Policies and Procedures, our analysis focuses on access to public records that actually exist rather than those that should exist.
KCI Paducah contracts with the Department of Corrections to house "inmates who are classified as community custody and are near their parole eligibility dates." 1 KCI Paducah acknowledges that it only notifies the Kentucky State Police "in the event of an escape." In this case, KCI notified the Paducah Police Department. Ms. Gooud states that the Paducah Police Department did not generate a report. However, Mr. Fulcher did not request the report prepared by the law enforcement agency notified. He requested the "E.O.R. notification to the Kentucky State Police pursuant to C.P.P. 8.7." (Emphasis added.) If notification to the Paducah Police Department was reduced to writing, if the notification is nonexempt, and if Mr. Fulcher wishes to obtain a copy, he may submit a request for that record.
By the same token, Mr. Fulcher requested "the extraordinary occurrence report filed pursuant to Ky. Corrections Policy 8.6," and not, as Ms. Gooud indicates, the "occurrence report on former security monitor Jeff Clay finding the alleged crack pipe in the trash can." The latter record, Ms. Gooud advised, does not exist since "the pipe was found by former staff members Jon Griggs and Chad Hawkins." The reports generated by Griggs and Hawkins, Ms. Gooud concluded, have already been released to Mr. Fulcher. Because Mr. Fulcher has filed a number of open records requests and appeals in recent months, it is unclear if these reports were the subject of a previous appeal. If, however, Mr. Fulcher cannot differentiate the extraordinary occurrence report he now seeks from those already provided, or if the report he now seeks is the report already provided and he "cannot explain the necessity of reproducing the same records twice, [KCI] is not required to satisfy the same request a second time." 06-ORD-159, p. 8. Addressing this issue, the Attorney General has observed:
To produce records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended. [Citations omitted.] Thus, we have reasoned, "common sense dictates that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential function . . . ."
06-ORD-159, p. 8, citing 95-ORD-47 and 99-ORD-107.
Nevertheless, it is abundantly clear that KCI Paducah failed to discharge its duties under KRS 61.880(1) by not issuing a timely written response to Mr. Fulcher's September 14, 2009, request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
We urge KCI Paducah to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
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.
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