Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in failing to provide documents which did not exist. We find that NTC did not violate the Open Records Act in failing to provide documents which did not exist.
Willie J. Stewart ("Stewart") submitted an open records request to NTC on June 3, 2014. Stewart stated "on May 23, 2014, I was sent a questionary Risk and Assessment. . . . What I'm asking to review and copy the Risk Needs Assessment and the Case Planning." NTC denied the request on June 4, 2014 on the grounds that Stewart "had failed to fill out the following forms (the Authorization to Use Inmate Account Form.) The Authorization to use Inmate Account Form must be signed by your Classification and Treatment Officer not the Legal Library Officer." Stewart filed another open records request to NTC on June 5, 2014, again requesting "the Risk and Needs Assessment Done on 5/28/14." NTC denied the request on June 9, 2014 on the grounds that "there is no record in your file that corresponds with the dates you provided on your request. Northpoint Training Center cannot provide documents that do not exist . . . ."
Stewart initiated this appeal on June 12, 2014. Stewart argued that "on 6/3/14, Complaint gave the specific description and information . . . with the appropriate Legal Aide Corr. Officer signing the Cash Pay Order (CPO). Stewart attached an undated Authorization to Use Inmate Account form for a "Copy of Risk and Needs Assessment and Case Planning" containing the signature of Derrick Roberts on the line "Classification and Treatment Officer." Stewart further argued that "on 6/9/14, Offender Information Specialist Lisa Douglas gave Flagran and Misleading information as to Attachment . . . to keep the complaint from showing the Parole Board any inaccuracies in the Risk and Needs Assessment ." Stewart attached a questionnaire from CTO Jaime Moreland stating, "I need to complete a risk needs assessment (LSCMI) on you for your upcoming parole hearing," which was completed by Stewart and dated 5/28/14.
NTC responded to the appeal on June 23, 2014. Regarding the June 3 request, NTC stated that Stewart "failed to include the required information on the Authorization to Use Inmate Account Form and he did not have his classification and treatment officer sign the form. Accordingly, the payment request was invalid. The DOC requires advance payment for copies of records as allowed pursuant to KRS 61.874(1)." Regarding the June 5, request, NTC stated that the request "was denied because a document fitting that description could not be located. . . . A public agency cannot afford a requester access to a record that it does not have or which does not exist." NTC further argued that if Stewart's request could be interpreted as a request for his Level of Services Case Management Inventory ("LS-CMI") form, then it is exempt as containing information from a Presentence Investigation Report ("PSI"), which is made confidential under KRS 439.510. If Stewart's request is construed as a request for a risk and needs assessment for parole board hearings, it is exempt as a preliminary document pursuant to KRS 61.878(1)(i) and (j).
Regarding the June 3 request, Stewart has provided an undated Authorization to Use Inmate Account form, signed by Derrick Roberts on the line "Classification and Treatment Officer." NTC maintains that the form was signed by a Legal Library Officer and not a Classification and Treatment Officer. "This office is unable to conclusively resolve factual disputes." 08-ORD-144. We cannot conclusively resolve the factual issue of whether NTC's denial of Stewart's June 3 request on procedural grounds was proper. Since Stewart subsequently submitted a request for the same documents, we move to the substance of Stewart's requests.
"A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. NTC has stated that it does not currently possess any such records, and in doing so discharges its duty. Accordingly, NTC did not violate the Open Records Act in failing to produce documents it did not possess.
Even if an LS-CMI or a risk and needs assessment report is created at some point, Stewart still would not be entitled to them. KRS 439.510 provides that "all information obtained in the discharge of official duty by any probation or parole officer shall be privileged" and that "such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled . . . to receive such information." KRS 67.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 439.510 and KRS 67.878(1)(l) therefore exempt documents containing information obtained by a probation or parole officer in the course of their duties from the Open Records Act. LS-CMI forms contain information collected by probation and parole officers in the course of their duties, and as such are exempted from the application of the Open Records Act by KRS 439.510 and KRS 61.878(1)(l). 11-ORD-169. Risk and needs assessment forms also contain information obtained by probation and parole officers, and are similarly exempted from the application of the Open Records Act. Id.; Martin v. Kentucky Dept. of Corrections , No. 2012-- CA-1343, 2013 WL 1688198 (Ky. Ct. App. Apr. 19, 2013). Accordingly, even if responsive records existed, NTC would not violate the Open Records Act in withholding them.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Willie J. Stewart # 093596Cindy SanchezAmy V. Barker