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 Kentucky State Reformatory violated the procedural requirements of the Open Records Act in the disposition of James Carl Higgs' request for a copy of his Adjustment Committee tape from the hearing conducted on January 14, 2011. Further, we find that because Mr. Higgs rebuts KSR's belated assertion that the January 14 hearing "was terminated before it began and the matter was rescheduled for a hearing on March 9, 2011," KSR must take additional steps to insure that an adequate search was or is conducted for the requested tape.
On appeal, Mr. Higgs asserted that a hearing was conducted on January 14 but was:
terminated after [he] pointed out to [Lieutenant Jeanette M.] Walls that somebody had blotted out the names of the witnesses, Faye West and Steven Stewart, that [he] had requested.
Mr. Higgs noted that Legal Aide Boris William attended the hearing, that during the hearing chain of custody issues regarding urine specimens were discussed, and that he was permitted "to propound questions for responses by Faye West, Steven Stewart, Lt. Andrew Lucas and Timothy Hedges in lieu of their appearances." All of this, Mr. Higgs argued, "should have been captured on the record of the January 14, 2011, hearing."
KSP originally relied on KRS 61.878(1)(h) in denying Mr. Higgs' request. The agency's response recited the language of that exception 1 and advised him that "[t]he status of this Adjustment Committee hearing has not been finalized yet. . . ." In supplemental correspondence directed to this office following commencement of Mr. Higgs' appeal, KSR, through the Department of Corrections, acknowledged error in the exception relied upon, but maintained this error "is of no substantive consequence[, though it gave] the impression that the record existed and was being withheld,] as there is no record to provide." KSR asserted that the "hearing was terminated before it began" but offered no explanation for the decision to terminate the hearing. We reject KSR's argument that these errors are "of no substantive consequence" as they relate to Mr. Higgs' request. Unless KSR has proof that Mr. Higgs' memory is faulty, and that no hearing, not even a terminated one, occurred on January 14, it is obligated to conduct an adequate search, or insure that an adequate search was conducted, for the tape of the terminated hearing.
KSR's original response was premised on the occurrence of the January 14 hearing. On appeal, Mr. Higgs provides significant details concerning those present at the January 14 hearing, those not present at the hearing, the matters discussed at the hearing, and actions he was permitted to take at the hearing. We are not prepared to casually dismiss these details as chimerical. Only after Mr. Higgs initiated his appeal was the determination made that the hearing did not occur. As noted, no explanation was offered for the nonoccurrence of the hearing and the nonexistence of a tape thereof.
While it is certainly true that an agency cannot produce a record that does not exist, 2 here both the facts and the law suggest that a hearing occurred on January 14 and that a tape should have been made. Corrections Policies and Procedures 15.6II.B.2. In the absence of a credible explanation for the nonexistence of a tape of an Adjustment Committee hearing whose occurrence it originally acknowledged, and details of which have been introduced into the record on appeal, we find that KSR's duties under the Open Records Act will not be fully discharged until it conducts additional inquiry into the events of January 14, as they relate to Mr. Higgs, and documents an adequate search for the responsive tape.
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.
Distributed to:
James Carl Higgs, # 084908Marc AbeloveAmy V. Barker
Footnotes
Footnotes
1 KRS 61.878(1)(h) authorizes nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
2 Accord, Lexington-Fayette Urban County Government v. Bowling, 172 S.W.3d 333 (Ky. 2005).