Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Little Sandy Correctional Complex did not violate the Open Records Act only if it verified that all records in inmate requester Donald Sargent's institutional file from 1981 1 to the present were transferred to the Kentucky Offender Management System that he "declined to view" on or about September 16, 2010. Having previously inspected his KOMS file, Mr. Sargent insists that although "there are a few items from 1980 until the present" in his KOMS file, "most of the file is from 2007 until present." LSCC responds that "data from inmate files has been backfiled into the system so that paper files would no longer be necessary" and that paper files "were destroyed as they were entered into KOMS." DOC's Records Retention Schedule, which was updated in December 2009, indicates that Records Series 03016, Inmate Institutional File, is maintained in a paper medium as well as on computer disk. Unless LSCC has confirmed that all paper records in Mr. Sargent's inmate institutional file from 1981 to the present have been backfiled into KOMS, its disposition of his request is incomplete.
LSCC does not dispute Mr. Sargent's right to inspect his institutional file and "offered to allow [him] to view his file in KOMS, an offer he declined as confirmed by both the response to his request and his letter [of appeal]." Had he availed himself of this opportunity, LSCC asserts, "he would have discovered that his entire inmate file is indeed in KOMS." Mr. Sargent indicates that he has reviewed his KOMS file "many times," acknowledges that it contains a few items from his pre-2007 incarceration, but maintains that "most of the file is from 2007 until present." The Retention Schedule catalogues a number of records that the inmate institutional file "may contain" including:
Order for appearance of prisoners; detainers; physical identification forms; incident reports; disciplinary reports and Final Decision as result of the disciplinary report; pre-hearing detention forms; record of interviews; academic/vocational school diplomas received during incarceration; receipt for property and/or money; orders; sheriff's receipt; resident record card; custody time credit; status change; notice of discharge; parole board action sheet; parole reports; parole plans; employment placement verification reports; parole certificates; results of preliminary violation hearings; receipt for return of parole violators; parole violation transport authorization form; parole violation warrant; revocation of parole hearing form; notification of release of inmate; victim impact statements; pre-sentence, post sentence and supplemental investigation; test scores; progressive incarceration plans; progressive incarceration plan updates; classification review records; FBI Sheet; transfer recommendation and authorization forms, notice of furlough; furlough application; furlough code of conduct, DNA results; and photos, including photos of tattoos.
Records Series 03016. As noted, the Description and Analysis form for this record series indicates that unidentified records within the series exist in a paper medium in addition to or in lieu of a computer disk. Yet no where does the schedule identify those records still maintained in a paper medium and those electronically stored. Moreover, while the conversion to KOMS was underway the Department of Corrections unsuccessfully asserted a claim of undue burden to the Kentucky Supreme Court based on the necessity of manually sifting through voluminous paper inmate institutional files in responding to inmate records requests. Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). This confirms that the files existed in a hard copy format during the pendency of that litigation. Under these circumstances, we are not prepared to accept LSCC's categorical denial of the existence of paper records in Mr. Sargent's inmate institutional file. 2
Because Mr. Sargent's prior review of his institutional file on KOMS suggests the omission of some pre-2007 records relating to his incarceration, and the applicable retention schedule indicates that the file is maintained in a paper and electronic medium, we believe it is incumbent on LSCC to conduct a search to verify that there are no paper records responsive to Mr. Sargent's request if it has not already done so. We urge Mr. Sargent to thereafter avail himself of the opportunity to review his institutional file on KOMS to establish the existence or nonexistence of the records he seeks. While we are not equipped to resolve a dispute concerning the existence of records, we have identified a number of discrepancies that warrant additional measures aimed at insuring full disclosure.
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.
Donald Sargent, # 085147Jonathan S. Milby
Footnotes
Footnotes
1 Mr. Sargent indicates that he was first incarcerated in 1981 and has been incarcerated "on and off" since 1981.
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2 Additionally, we note that the electronic records systems description attached to the Department of Records Retention Schedule indicates that "access is restricted to authorized individuals" and that "there is no public access available to KOMS." Much of the information found in KOMS is nonexempt public records that is both accessible to the public and accessible to the inmate if the information relates to him or her and disclosure does not pose a security risk per KRS 197.025. We trust that DOC has implemented a system by which the public's right of access, as well as that of the inmate population, is fully accommodated.
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