Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky Correctional Complex violated the Open Records Act in denying Jimmy Thacker's March 9, 2014, request for a copy of "state pay receipts for the following months: May-June, 2003; May-June, 2004; May-June, 2011; and June-July, 2011." In a response dated April 1, 2014, EKCC advised Mr. Thacker that "[t]he KOMS 1 System [sic] will not allow us to obtain this information. We cannot print state pay receipts from previous dates." We find that EKCC's denial of the request was procedurally and substantively deficient. Additionally, we find that EKCC's failure to produce responsive records until after this appeal was filed raises records management issues that may warrant review by the Kentucky Department for Libraries and Archives.
In correspondence directed to this office after Mr. Thacker initiated his appeal, counsel for EKCC confirmed that "records requested by Inmate Thacker are not available," explaining that the facility's "Inmate Accounts Department can print only current pay receipts and the Kentucky Offender Management System (KOMS) does not allow them to retrieve or print non-current pay receipts." Relying on authorities affirming agency denial based on the nonexistence of responsive records, EKCC again denied Mr. Thacker's request. With reference to the untimeliness of EKCC's response, counsel explained that Offender Records received his request on March 11 and forwarded a copy to Inmate Accounts. The Offender Records Custodian was thereafter called away from her duties "for several days" and only later learned that the request did not reach Inmate Accounts, issuing EKCC's denial of Mr. Thacker's request nearly three weeks after its submission. 2
Upon receipt of EKCC's supplemental response, this office examined the Records Retention Schedule for the Justice and Public Safety Cabinet , Corrections, Adult Institutions , and located Records Series 03018, Prisoner Payroll Records, the disposition instructions for which state "Retain in agency three years and destroy after audit. " The same schedule establishes a seventy-five year retention for the Offender Records -- Master File stored in KOMS at Records Series 02982. Since EKCC indicated that payroll records are maintained in KOMS, a seventy-five year record, we asked why non-current payroll records could not be retrieved and printed by KOMS in a series as questions propounded under KRS 61.880(2)(c). 3 Specifically, we asked why payroll records, a three year record, were stored in KOMS, a records system with a lengthy retention, when they are subject to destruction after three years and audit per Records Series 03018, and whether payroll records were purged from KOMS after audit. Additionally, we asked how the records were entered and tracked in KOMS, e.g., by inmate name or inmate identification number and what the specific obstacles to retrieval and reproduction of "noncurrent pay receipts" were.
In its response to our questions, EKCC acknowledged that the records identified in Mr. Thacker's request were, in fact, stored in "a previous Corrections database, Kentucky Inmate Management System (KIMS, replaced by KOMS in 2008)" and not in KOMS. Counsel indicated that EKCC was able to retrieve the data from 2003 and 2004, through Central Office, and provide Mr. Thacker with copies, but that the facility could not produce responsive records for 2011 because he was housed in Floyd County Regional Detention Center and/or Simpson County Regional Detention Center in 2011. 4 Nevertheless, counsel concluded, EKCC's denial was made in good faith by employees who were unaware that the records were stored in KIMS.
EKCC's Fiscal Manager, Michael McKinney, provided additional clarification:
During 2007 and 2008 the Kentucky Department of Corrections made the transition from using the KY Inmate Management System (KIMS) to the KY Offender Management System (KOMS). The KOMS system does have the ability to store seventy-five years of offender data, however, the data associated with state pay and inmate accounts only starts from the implementation date for up to 75 years. All activity prior to the implementation date is still stored in the KIMS system. Currently Eastern KY Correctional Complex does not have any staff with access to KIMS data. I have learned since reviewing the information in order to respond to this letter that the KY Dept. of Corrections Central Office staff still has limited access to KIMS data. I requested that a query be run in the system for Mr. Thacker's request and have attached a copy of the data provided. However, when the original request was made it was unbeknownst to us that this data retrieval was possible. Mr. Thacker received this information on May 20, 2014 and I have attached the letter and signature of receipt of the information by Mr. Thacker.
Mr. McKinney did not explain when or why the decision was made to store prisoner payroll records in KIMS/KOMS, Records Series 03018 notwithstanding, but indicated that "[n]o records are purged from KOMS or KIMS." He characterized the issue on appeal as "an issue of access and knowledge of access to inmate records in the KIMS system prior to implementation of the KOMS system" and not "an issue as to the retention periods." We believe it is both.
To begin, EKCC violated KRS 197.025(7) by failing to respond to Mr. Thacker's March 9 request in writing and within five business days. EKCC offers two explanations for its failure to act, the first based on a problem in delivery of the request to its Inmate Accounts Department and the second based on the absence of its records custodian. Neither explanation constitutes a legally recognized defense to agency inaction. The Attorney General has long recognized that the absence of an agency's records custodian does not toll the agency's response time. See, e.g., 09-ORD-140. On this issue, we have observed:
The Open Records Act assumes the appointment of an official custodian, defined as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control," KRS 61.870(5) , who is responsible for the timely processing of open records requests. KRS 61.872; KRS 61.880(1). The Attorney General has recognized that in the event the official custodian is absent, "an individual should be appointed as acting custodian to respond to open records requests in a timely fashion. " 94-ORD-86, p. 4; see also 96-ORD-185, p. 3 (holding that "the law presumes the appointment of a records custodian . . . and in his absence, the appointment of an alternate to fulfill his duties"); 98-ORD-161, p. 3 (holding that "the three day statutory response time 5 is not tolled by the absence of the agency's records custodian" ).
09-ORD-018, pp. 3-4, citing 00-ORD-226, p. 2; see also 06-ORD-131, pp. 4-5. Had EKCC designated an alternate custodian during its custodian's absence, the problem in transmission of Mr. Thacker's request would have been detected and a timely written response would have been issued. In the absence of its designated records custodian, it was incumbent on EKCC to appoint an acting custodian to process open records requests in a timely fashion. Its failure to do so resulted in a violation of KRS 61.880(1).
EKCC's original denial of Mr. Thacker's request was based on an admitted lack of understanding of a records management system(s) that is grounded in agency practice rather than applicable law. Pursuant to KRS 171.530, the Archives and Records Commission, deriving its authority from KRS 171.420, "shall establish standards for the selective retention of records of continuing value." The Commission has done so with respect to EKCC's records in the Records Retention Schedule for the Justice and Public Safety Cabinet, Corrections, Adult Institutions , and with particular reference to prisoner payroll records, Records Series 03018, directing retention of the records in the agency for three years and destruction of the records "after audit. " These schedules have the weight of law pursuant to 725 KAR 1:061 by which they are incorporated into regulation. Agency heads are charged, pursuant to KRS 171.680, with the duty to "establish and maintain an active, continuing program for the economical and efficient management of the records of the agency" that includes the duty to provide for:
(a) Effective controls over the creation, maintenance, and use of records in the conduct of current business;
(b) Cooperation with the department in applying standards, procedures, and techniques designed to improve the management of records;
(c) Promotion of the maintenance and security of records deemed appropriate for preservation, and facilitation of the segregation and disposal of records of temporary value;
(d) Compliance with the provisions of KRS 171.410 to 171.740 and the rules and regulations of the Department [for Libraries and Archives].
See also, KRS 171.640 (requiring each state or local agency to "cause to be made and preserved records containing adequate and proper documentation . . . designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agencies activities" and "[s]uch documentation shall be created, managed, and preserved in accordance with standards, rules, and regulations prescribed by the Department [for Libraries and Archives]").
The Records Retention Schedule for the Justice and Public Safety Cabinet, Corrections, Adult Institutions , is not permissive. It is mandatory. Although EKCC may maintain scheduled records for a period greater than the disposition instructions direct, 6 it does so at its peril. Accord 10-ORD-084 (recognizing that "[i]f a public agency chooses to keep public records longer than is mandated by its applicable retention schedule, the agency must accept the ramifications of that choice"); see also, 14-ORD-118. The facts giving rise to this appeal provide a practical example of this potential peril. EKCC denied Mr. Thacker's request based on the nonexistence of responsive records. 7 After Mr. Thacker challenged EKCC's position, the facility determined that the 2003-2004 records he requested, and which might have been retained only three years and "destroyed after audit, " were stored and could be retrieved from a Corrections database that is no longer in use. Had EKCC followed the disposition instructions for Records Series 03018, prisoner payroll records by retaining them three years and "destroy [ing] them after audit, " it could have promptly advised Mr. Thacker that the requested records were destroyed under authority of the governing retention schedule. Instead, EKCC issued a denial based on its inability to access payroll records stored in a database from which they could not, it originally argued, be retrieved. 8 Upon further inquiry, prompted by Mr. Thacker's legal challenge, it retrieved the payroll records stored in KIMS through Central Office and provided him with copies. 9 Its position finds no support in law or fact.
Because it was untimely, EKCC's response violated KRS 61.880(1). Because Mr. Thacker ultimately obtained some of the records identified in his request, albeit belatedly, EKCC's disposition of that request was only partially violative of the substantive requirements of the Open Records Act. Nevertheless, because the explanation for its original denial raises significant records management issues, we have referred this matter to the Kentucky Department for Libraries and Archives for further inquiry as the Department deems warranted pursuant to KRS 61.8715.
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:
Jimmy Thacker, # 102079Sonya WrightLinda M. KeetonBarbara Teague
Footnotes
Footnotes
1 Kentucky Offender Management System.
2 It should be borne in mind that, pursuant to KRS 197.025(3), an inmate has only twenty days to initiate an appeal of a correctional facility's denial of his request.
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
4 We trust that in 2011 Mr. Thacker was not a state prisoner housed in a local facility for whom Corrections would have a continuing records retention and management duty.
5 As noted, KRS 197.025(7) extends EKCC's response time by two days for a total of five business days.
6 Premature records destruction, on the other hand, may constitute a Class D felony pursuant to KRS 519.060(1)(b), Tampering with Public Records. It may also implicate KRS 61.991(2)(a) and KRS 171.720, relating to willful concealment/destruction and unlawful destruction of public records.
7 The records nonexistence, in the case, was based on the inaccessibility of payroll records stored in KOMS.
8 We remind EKCC that in Commonwealth v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008), the Kentucky Supreme Court admonished the Department of Corrections that it could not rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Whatever the specific obstacles to access of records stored in KOMS or KIMS, EKCC must overcome them in order to ensure Mr. Thacker's, or the public's, right of access.
9 In this case, records mismanagement worked to the advantage of the requester, but in many cases it does not. Hence, the legislature has recognized an essential relationship between records management and records access at KRS 61.8715. The same statute recognizes that "to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes." A recordkeeping system that does not facilitate records retrieval and production, along with proper records retention, does not satisfy this statutory requirement.