Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Doy S. Beasley initiated this appeal by letter dated February 8, 2016, challenging the failure of the Department of Corrections (DOC) to issue a timely written response upon receipt of his January 25, 2016, request for "all lette[r]s received from Doy S. Beasley or Butler Co. Jail." Mr. Beasley advised that he kept asking "Butler Co. Jail for . . . all my records and PREA [Prison Rape Elimination Act documents] filed on Ellen Johnson on April 23[, 2015.] All PREA Grievance[s] and medical records." However, upon receiving notification of Mr. Beasley's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of DOC. Ms. Barker first advised that DOC received Mr. Beasley's request on February 1, 2016, and issued a written response within five business days per KRS 197.025(7). 1 The record on appeal confirms that fact.
Attached to Ms. Barker's appeal response was a copy of the letter directed to Mr. Beasley on February 8, 2016, by DOC Offender Information Services, identifying the five categories of records maintained in his DOC "Central Office offender record folder, " which do not include medical records of the inmate. Accordingly, DOC notified Mr. Beasley that his medical records are contained in his "Medical offender record folder" located at Kentucky State Penitentiary (KSP) and provided contact information for that agency in accordance with KRS 61.872(4). 2 Because DOC issued a timely written response within five business days, 3 and referred Mr. Beasley to KSP for those records not in the custody or control of DOC, this office has no basis upon which to find that DOC violated KRS 197.025(7) or KRS 61.872(4).
DOC initially failed to make any mention of the requested letters. However, Ms. Barker advised on appeal that staff ultimately conducted a search for the letters and provided all existing responsive letters to Mr. Beasley on March 3, 2016. The March 3, 2016, supplemental response from Offender Information Services, a copy of which Ms. Barker attached to her appeal response of the same date, confirms that fact. Accordingly, DOC was correct in asserting that any related issues are moot per 40 KAR 1:030, Section 6, pursuant to which, "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."
DOC initially denied Mr. Beasley's request as to "PREA Grievances" on February 8, maintaining that "[a]ll PREA documents are exempt from disclosure" on the basis of KRS 197.025(1) , which provides that "KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." However, on March 3 DOC advised that such records "are also not maintained in the DOC Central Office." DOC Offender Information Services advised Mr. Beasley to forward his request to the Butler County Jail and provided the address for that agency per KRS 61.872(4). On appeal DOC correctly observed that a public agency cannot provide that which it does not have, nor is a public agency required to "prove a negative" when denying existence or possession of a record, citing a number of prior decisions by this office affirming that principle. Although its February 8 response was deficient "inasmuch as [DOC] failed to affirmatively indicate as much to Mr. [Beasley]," its ultimate disposition of Mr. Beasley's request is affirmed. 10-ORD-215, p. 3.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
2 Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."
3 On appeal DOC correctly noted that since Mr. Beasley is currently housed at KSP, instead of submitting his request to a Jail Services Specialist at DOC Central Office, "he should have directed his open records request for any medical records he seeks from the DOC to the open records coordinator or medical records custodian at KSP, not Central Office staff." See 06-ORD-078 (upholding relevant section of Corrections Policy and Procedure (CPP) 6.1, requiring an inmate to submit any request via institutional or first class mail to the open records coordinator).