Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented in an open records appeal, and the Attorney General being sufficiently advised, we find that the record on appeal does not support Roederer Correctional Complex's claim that inmate David Tidwell's open records appeal is time-barred. We further find that although RCC cannot produce a record that does not exist, it erred in failing to conduct an adequate search for the record in dispute and, after belatedly establishing the nonexistence of the record, in failing to provide the requester with "a written explanation for [the record's] nonexistence. "
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011).
On April 25, 2013, Mr. Tidwell requested a copy of the recording of the adjustment hearing "for DR#: AC-2012-01640 that was held on . . . on 12-26-2012." He acknowledged receipt of the hearing record for January 8, 2013, in response to an earlier request for the record of the December 26, 2012, hearing, but emphasized his need for the latter record of the twenty minute proceeding during which "the Hearing Officer sent it back to be reinvestigated because [s]he didn't find it to be a category 7-1." In the event the record could not be produced, Mr. Tidwell asked for a written explanation "as to why it's no longer available . . . ."
In an undated letter, RCC's records supervisor apologized "for the delay" in responding to Mr. Tidwell but indicated that a review of his file confirmed:
that on 12/11/12 Lt. Freeman started his investigation into the Disciplinary Violation of 12/5/13. Lt. Freeman reopened the investigation on 12/29/12. Please note that investigations are not taped only the hearings are taped. You have received a copy of the CD from the hearing held on 1/8/2013 mailed on 4/9/2013.
On May 20, 2013, Mr. Tidwell again requested "the HEARING RECORD for DR# AC-2012-01640 that was held on 12-26-12 by Lt. Jannette Harold [sic]." He again asked that, if the record could not be produced, RCC provide a written explanation "why this Hearing Record is no longer in [RCC's] possession." This request went unanswered, prompting Mr. Tidwell to initiate an open records appeal on June 17, 2013.
In his letter of appeal, Mr. Tidwell described the December 26 hearing as one attended by Legal Aide Milton L. Westerfield, Lt. Janet Herrell and him, that "lasted in excess of 20 minutes and resulted in Lt. Harold [sic] being unable to find [Mr. Tidwell] guilty [and her decision to] send the Disciplinary Report back to be reinvestigated . . . ." 1 In response, RCC asserted that Mr. Tidwell's appeal was time-barred per KRS 197.025(3).
Acknowledging that "there is not a date on the response sent by RCC," the agency advised:
A computer record indicates that the request and response were scanned into KOMS on May 8. Pursuant to KRS 197.025(3) , the twenty day timeframe in which inmate Tidwell could send an appeal ended on May 28. Inmate Tidwell's letter of appeal is dated June 17 . . . .
Alternatively, RCC asserted that "adjustment hearings were not held on December 26, so no recording exists." It was the agency's position that it could not afford Mr. Tidwell access to a nonexistent record.
On July 17, 2013, this office received a copy of an email from RCC's records supervisor to Lt. Herrell advising the latter of receipt of a letter from Mr. Tidwell in which he "broke down the dates of his hearing." This office immediately requested clarification and, later that day, received an email from Lt. Herrell. She explained:
Tidwell is not on my docket. But since Lt. Kiefer heard it I may have had him in the Adjustment Room and determined that there was not enough evidence in the report and sent it back. But it would not have been recorded until I actually start a hearing and according to the docket I did not start it. Because if I had it would have shown up in the hearing results.
Agency counsel subsequently explained:
[T]he institution does not have an adjustment hearing recording for 12/26/12 as requested by the inmate. Counsel was originally misinformed that no adjustment hearings were held on December 26. The communication was apparently intended to indicate that no adjustment hearing was held for inmate Tidwell. A number of hearings were held, but an actual hearing was not held for inmate Tidwell. The status information maintained in computer records for the disciplinary report at issue indicates that the hearing officer requested a reinvestigation for the disciplinary report on 12/26/12.
It appears that the inmate was called to a scheduled hearing, but the hearing was not held since the hearing officer sent it for reinvestigation on that date. The adjustment officer does not have a specific recollection of the events of this particular disciplinary report on that date given the number of proceedings that she handles. The DOC status information in exhibit 1 shows that the disciplinary report was sent for reinvestigation on 12/26/12. The actual hearing was later held by another hearing officer, which lends weight to Lt. Herrell seeing inmate Tidwell in some manner on 12-26-12 when the report was sent for reinvestigation.
Again, counsel asserted that "[n]o actual hearing was held[,] . . . no recording was made," and RCC cannot produce a record that it does not have. 2
Given the absence of an express denial of Mr. Tidwell's request, and the omission of the date on the RCC's response from which the agency calculates the twenty day period of limitations for initiating an open records appeal, we decline to treat Mr. Tidwell's appeal as time barred. Having considered the record on appeal, we find that RCC erred in failing to conduct an adequate search for the disputed hearing record and, after belatedly establishing that a discussion between Lt. Harrell and Mr. Tidwell occurred on December 26 but no record of the discussion was created, in failing to provide Mr. Tidwell with "a written explanation for [the record's] nonexistence. " Eplion , above at 604.
KRS 197.025(3) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a circuit court.
The twenty day period of limitation cannot be calculated from RCC's undated response to Mr. Tidwell's April 25 request because the response did not constitute a denial of the request and was, in fact, undated. RCC's response focused on Lt. Freeman's investigation and referenced the earlier release of a record from Mr. Tidwell's January 8, 2013, hearing. It did not directly reference the record of the December 26 hearing. Assuming, for the sake of argument, that the response constituted a denial, it was undated and the timing of its issuance extrapolated from KOMS information. Mr. Tidwell continued his written dialogue with RCC in an effort to establish the existence of the hearing record, again requesting a copy of the record on May 20. Having received no response to that request, he initiated this appeal within the twenty day period of limitation. Under these circumstances, we decline to treat Mr. Tidwell's appeal as time-barred pursuant to KRS 197.025(3).
Proceeding to the merits of Mr. Tidwell's appeal, we find that RCC erred in failing to conduct an adequate search for the December 26, 2012, hearing record, electing instead to provide him with a January 8, 2013, hearing record that he did not request, a written description of Lt. Freeman's investigation, and, after he appealed, a denial premised on the erroneously held belief that no adjustment hearings were held on December 26, 2012. It was not until Mr. Tidwell pressed the point in a July 12 letter to RCC's records supervisor that RCC undertook a search "using methods that could reasonably be expected to produce the requested record." 11-ORD-036, p. 4, citing 95-ORD-96, p. 7. At that juncture, agency counsel requested that Lt. Herrell prepare "a memo explaining what she can determine about this issue" and RCC conducted a review of the status results for the disciplinary report at issue and the Adjustment Hearing Results for December 26, 2012. A review of those documents, and Lt. Herrell's July 23 memorandum, confirmed that Mr. Tidwell appeared before Lt. Herrell on that date and that she requested reinvestigation. Lt. Herrell provided counsel with a reasonable explanation for Mr. Tidwell's belief that a hearing occurred, acknowledging that it was possible he was "scheduled on that date and a short discussion was had about the reinvestigation. " Although she had no "specific recollection" that this occurred, Lt. Herrell indicated that "[i]t is a normal practice for me to pull inmates from segregation and if I see something in the report that is not correct to send it back for reinvestigation before a hearing is started. " She reiterated that "[n]o actual hearing was held on December 26, 2012, and no tape of any discussion that may have been had on that date was made." 3 It was to this explanation that Mr. Tidwell was entitled under the rule announced in Eplion v. Burchett , above, as applied to these facts.
In Eplion , at 604, the court adopted the view, long held by this office, that "when it is determined that an agency's records do not exist, the person requesting the record" is entitled to a written explanation for their nonexistence. '" Citing 10-ORD-078. Where, as here, evidence is adduced that imports the existence of a public record, and the agency is unable to produce the record, the agency is obligated to explain, in writing, why that record is unavailable. Mr. Tidwell asked for such an explanation, in the event RCC could not produce the "hearing" record, on two occasions. We find that RCC erred in failing to provide Mr. Tidwell with an explanation for its inability to produce the record and that its duty under the Open Records Act will not be fully discharged until it has done so.
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:
David Tidwell, # 206245Tandy WellsAmy V. BarkerJanet Herrell
Footnotes
Footnotes
1 In subsequent correspondence, Mr. Tidwell amplified on his description:
Inmate Milton Westerfield does RCC court call at KSR for people like me in the hold for RCC. It was recorded. And Lt. J. Herrell. . . did hear my side of the story and my Legal Aide defense. We reserved several things on record and then she came to the conclusion it was not a 7-1 violation of prison rules because there was video surveillance that showed it could be accidental or intentional.
. . .
[It] was a legit hearing that ended in her ordering a second investigation and her word to talk on my behalf . . . in the KSR court call room and it was the same type of small recorder that was used on January 8, 2013.
2 A July 23 memorandum from Lt. Herrell to RCC counsel confirmed:
In review of my records from December 26, 2012, I do not show that I held an adjustment hearing on inmate David Tidwell, 206245, on that date. I have attached the KOMS generated hearing results report from that date.
In response to your question about inmate Tidwell insisting that we met for a hearing, the status history of the adjustment proceeding in the computer records show that I requested a reinvestigation for the disciplinary report on that date. It is possible that inmate Tidwell was scheduled on that date and a short discussion was had about the reinvestigation. It is a normal practice for me to pull inmates from segregation and if I see something in the report that is not correct to send it back for re-investigation before a hearing is started. That may have been the case here, but I do not have a specific recollection of that occurring.
3 Mr. Tidwell remarks, more than once, on the presence of a tape recorder at the December 26, 2012, proceeding. It is, however, possible, if not probable, that the recorder was not running during his discussions with Lt. Herrell. Additionally, he states that the proceeding lasted twenty minutes. Lt. Harrell described it as a "short discussion." Certainly, these characterizations of the proceedings are not mutually inconsistent.