Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Department of Corrections violated the Kentucky Open Records Act in the disposition of Jaron S. Teague's February 24, 2011, request for "one (1) certified complete copy 1 of every loged [sic] in legal mail I received and signed for during the first (1st) (90) ninty [sic] working days starting from 9-10-07[.]" 2 Having received no response to his request, 3 Mr. Teague initiated this appeal by letter dated March 11, 2011. In responding to Mr. Teague's appeal on behalf of LMDC, Assistant Jefferson County Attorney Terri A. Geraghty advised that Pam Windsor, LMDC Director of Communications, had informed her "that the inmate mail log books are maintained by LMDC for a two year period and the 2007 log books have been destroyed. " The analysis contained in 07-ORD-182, a prior decision involving the same type of public records and the same public agency, is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference.
In researching the question presented, the undersigned counsel reviewed the Louisville Metro Records Retention Schedule as well as the Local Government Records Retention Schedule and the County Jailer Records Retention Schedule but was unable to locate any reference to "mail logs" or comparable records, or a record series that otherwise seemed to apply. Jerry Carlton, Manager of the Local Records Program at the Kentucky Department for Libraries and Archives, ultimately confirmed that none of those retention schedules contain a record series for inmate mail logs, and further advised that he plans to address this omission during the June 9, 2011, meeting of the Archives and Records Commission. Although LMDC cannot produce that which it does not have, and is not required to "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), and prior decisions of this office applying the rule announced in that case (see 07-ORD-188 and 07-ORD-190), the fact remains that unscheduled records must be "retained by the agency until a retention schedule is established for them." 04-ORD-040, p. 5.
Given the statutorily recognized interrelationship between records management and records access (KRS 61.8715), the inability of LMDC to produce the requested mail log (s), as in 07-ORD-182, raises a question regarding the records management practices of the agency insofar as the records were apparently destroyed yet no authority has been cited for such action. To satisfy its burden of proof under KRS 61.880(2)(c) a public agency must explain by what authority the records were destroyed. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. See 08-ORD-138 (copy enclosed). Although the record is devoid of any objective basis to suggest bad faith on the part of LMPD, the agency has not attempted to rebut this presumption. This appeal "presents [another] occasion for [LMDC] to work with [KDLA] to schedule these and other previously unscheduled records." Id., p. 8. See also 04-ORD-040; 94-ORD-121. Accordingly, this office again refers the matter to the KDLA for additional inquiry as that agency deems warranted.
Ultimately this office cannot afford Mr. Teague the relief he seeks; rather, this office is not empowered to declare LMDC's inability to produce nonexistent records a violation of the Act or to compel LMDC to maintain records for a specific period of time. Because the latter prerogative resides with the KDLA and the Archives and Records Commission, this office respectfully defers to these entities on the question presented.
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:
Jaron S. TeagueMark E. BoltonTerri A. GeraghtyBarbara Teague
Footnotes
Footnotes
1 LMDC was not required to provide Mr. Teague with a certified copy of any records that he sought; a public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act. 03-ORD-207, p. 3.
2 Although Mr. Teague also requested a printout of his 2007 charges, a printout showing the dates when he was booked and released and his "official discharge date," and "one copy of the Inmate Handbook," on appeal LMDC agreed to provide Mr. Teague with an opportunity to inspect (and copy upon request and receipt of payment) responsive documents; accordingly, the related issues are moot per 40 KAR 1:030, Section 6, and our decision addresses only the requested mail logs.
3 On appeal LMDC advised that it "has no record of receiving Mr. Teague's February 24, 2011, correspondence. The first time LMDC became aware of the correspondence was on review of the Open Records Appeal Notification that was forwarded to the agency" by this office. The Attorney General has consistently recognized that factual disputes of this nature cannot be conclusively resolved in this forum. See OAG 89-81; 03-ORD-061; 04-ORD-036; 08-ORD-172. As in the cited Open Records decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Teague's request for this office to conclusively resolve the related factual dispute. Absent objective proof to the contrary, this office has no reason to question the veracity of Pam Windsor, Director of Communications at LMDC, or Terri A. Geraghty, Assistant Jefferson County Attorney, and therefore finds no violation in this regard. The role of the Attorney General in adjudicating an Open Records dispute is narrowly defined at KRS 61.880(2); this office is without authority to deviate from that statutory mandate.