Opinion
Opinion By: Jack ConwayAttorney GeneralMichelle D. HarrisonAssistant Attorney General
Open Records Decision
Jimmy Browning initiated this appeal challenging the disposition by Northpoint Training Center (NTC) of his March 3, 2015 request for "e-mails from Deputy Warden Prestigiacomo to UA [Stefany] Hughes and to CTO Coleman in regards to Legal Aide Jimmy Browning 173074, Special Management Legal Aide, and Grievance 015-089, state pay for legal aide in SMU. Also Special Management Unit Weekly Legal Aide visitation list from January 1, 2015 through March 1, 2015." NTC received the request on March 6, 2015, and denied it due to "Insufficient Funds."
Upon receiving notification of Mr. Browning's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. She advised that "further investigation was made concerning the funds available" in his inmate account after his appeal was received. "It appears that a technical problem prevented an electronic deposit from being made to the inmate's account through JPay Inc.," an outside vendor that can generally accept deposits from an inmate's family and electronically transfers the money to the inmate's account. When his request was processed, the deposited funds were not posted. "Given that this was a technical issue and the money should have been available," Ms. Barker observed, NTC "has offered most of the records upon receipt of an authorization to deduct money from the inmate's account." She attached the March 30, 2015 supplemental response of NTC confirming this error and indicating that all nonexempt records, including responsive e-mails, the referenced grievance, and the visitation list entries containing a specific reference to him, would be forwarded upon receipt of a completed "Authorization to Use Inmate Account" form. 1 Citing 40 KAR 1:030, Section 6, 03-ORD-087 and 04-ORD-046, NTC correctly asserted that any issues regarding the records being provided were thus moot.
NTC further advised that "[t]he requested schedule contains entries during a week of legal/grievance aide visits in the segregation unit. Only one weekly schedule located contained entries for [Mr.] Browning." The schedule that contained entries referencing Mr. Browning specifically also contained entries for different legal aides, which NTC redacted in accordance with KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In support of its position, the agency cited multiple prior decisions of this office.
Ms. Barker also explained that "[a] few of the weekly aide visitation schedules were not retained. The schedules are a list to communicate between shifts and unit staff concerning which inmates have requested to see an aide to assist when the aide arrives in the unit." Accordingly, NTC characterized the "lists" or "schedules" as "routine correspondence," which falls within Records Series M0002 on the General Records Retention Schedule for State Agencies , and therefore does "not have a set retention period beyond retaining no longer than two years. They are not required to be kept beyond the time they are useful for communication among staff in the unit." Ms. Barker attached the April 3, 2015 memorandum of Stefany R. Hughes to verify her explanation of the "Legal/Grievance Aide Schedule."
The Attorney General has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like NTC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See 00-ORD-040; 10-ORD-136; 12-ORD-070. Inasmuch as the redacted entries do not contain a specific reference to him, as required under KRS 197.025(2), Mr. Browning is not entitled to access those entries, notwithstanding his underlying concerns. Mr. Browning is expressly precluded from gaining access to records (or portions thereof) which do not contain a specific reference to him by the mandatory language of this provision; accordingly, NTC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying his request.
With regard to any responsive visitation lists/schedules that were destroyed prior to Mr. Browning's request, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection attaches only if the record(s) being sought is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such record(s) exists, following a reasonable search, and explaining why as NTC ultimately did here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 12-ORD-056. It is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-136, p. 2. Rather, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records; the Attorney General is without authority to deviate from that statutory mandate.
That said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed if appropriate. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 12-ORD-195. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. 11-ORD-104, p. 5.
Here, NTC ultimately explained that any responsive documents not being produced were properly destroyed in the normal course of business per the applicable Records Retention Schedule , a review of which confirms that any responsive documents could have been properly destroyed prior to Mr. Browning's request. 2 When, as in this case, a public agency has denied that any responsive documents currently exist aside from those already released, and has fully explained why, further inquiry is unwarranted. 05-ORD-065, pp. 8-9. Accordingly, the agency's ultimate disposition of Mr. Browning's request is affirmed. See 11-ORD-014.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 By letter dated April 9, 2015, Mr. Browning disputed the agency's position regarding the stated technical error and reiterated that its denial affected his ability to provide documentation that substantiated his grievance in a timely manner. He further asked that "an Investigation be conducted" into the conduct of NTC and cited the receipt attached to his appeal in support of his argument. However, any underlying issues regarding Mr. Browning's grievance or factual issues regarding when the funds were actually posted on JPay are beyond our narrow scope of review under KRS 61.880(2)(a), which does not authorize this office to conduct investigations, gather evidence, interview witnesses, etc. See 09-ORD-186. Per KRS 61.880(2)(a), the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act]." See 09-ORD-186.
NTC has not denied that sufficient funds were, in fact, available on the date of Mr. Browning's request, only that a deposit failed to appear when the request was processed, and the receipt attached to his appeal does not refute that. In any event, NTC has now agreed to release the requested e-mails; accordingly, this office must decline to render a decision regarding those records per 40 KAR 1:030, Section 6, notwithstanding the concerns that Mr. Browning has.
2 Based on the understanding that lists or schedules responsive to Mr. Browning's request are less formal than a visitor's log (Series 05577 on the Department of Corrections Records Retention Schedule , Daily Activity Logs), which a Legal Aide is required to sign, and which also contain a list of the inmate(s) being seen and the reason(s) for the visit(s), a representative from the Kentucky Department for Libraries and Archives (KDLA) advised that classification of such lists of inmates requesting visits by the Legal Aide as "Routine Correspondence"("Retain no longer than two years") is appropriate. The General Schedule encourages all state agencies "to set a fixed period for [routine correspondence] and see that staff retains it for that length of time." See 12-ORD-148.