Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Johnny R. Phillips appeals Little Sandy Correctional Complex's response to his January 7, 2016, request for copies of:
1) external movement log sheet, from June 3, 2009, to the present, relating to him;
2) transfer notes, including the identities of persons initiating transfers, relating to him;
3) notes within KOMs relating to him and identifying "any/all reasons and/or listed needs or justifications" for his transfers;
4) electronic or hard copy communications between Kentucky State Reformatory, Northpoint Training Center, and Little Sandy Correctional Complex staff or Central Office relating to his transfers, in the past year, "from NTC to KSR back to NTC and then finally here to LSCC"; and
5) emails between NTC, KSR, or LSCC staff relating to his participation in the Kosher meals program, Kosher transfers,etc.
LSCC responded to Mr. Phillips on January 19, 2016, 1 by providing him with "the copies LSCC has pertaining to your request," redacting those portions that did not contain a specific reference to Mr. Phillips under authority of KRS 197.025(2) and KRS 61.878(1)(1). 2 Mr. Phillips thereafter appealed LSCC's response based on his "personal knowledge" that responsive emails relating to his transfer, and to his participation in the Kosher meals program, exist but were not disclosed to him.
In supplemental correspondence submitted to this office after Mr. Phillips filed his appeal, LSCC reiterated that it withheld no responsive record or email and redacted only "information from responsive emails that did not pertain to Mr. Phillips per KRS 197.025(2)." In an attached affidavit, LSCC's Records Supervisor, Elicia B. Harper, directly addressed Mr. Phillips' allegations, asserting that her search yielded no records other than those disclosed to him. In response to questions propounded to LSCC by this office, under KRS 61.880(2)(c), 3 Ms. Harper described, in detail, the search she conducted for responsive records. A copy of Ms. Harper's affidavit is attached and incorporated as if set forth in full. Mr. Phillips responded that proof of the inadequacy of the search, and of the existence of additional records, can be inferred from LSCC's failure to obtain affidavits from five individuals identified by name or title who were prepared to testify to the existence of such records. 4 Nevertheless, we affirm LSCC's disposition of his request and remind Mr. Phillips that allegations concerning concealment or destruction of records while an open records request is pending must be addressed by the courts. KRS 61.991(2)(a).
Under the standard for an adequate search recognized in 95-ORD-96, we find that, with the single exception noted below, LSCC "ma[d]e a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." As evidenced in Ms. Harper's second affidavit, incorporated herein, LSCC conducted a detailed search of KOMs for responsive records and directly communicated with individuals who were likely to maintain additional records. Ms. Harper acknowledges her oversight in failing to contact Ms. Lorie Conley, one of the employees identified in Mr. Phillips' March 9 letter, and her subsequent efforts to do so. 5 Given her success in locating additional records through direct contact with Ms. Conley, Ms. Harper should, if she has not already, expand her direct contacts to the other individuals Mr. Phillips identified, namely, CTO David Riggs, the LSCC Chaplain, the EKCC Chaplain, and the KSR Chaplain. With this single caveat, we find no evidence of an inadequate search.
Nor do we find that LSCC erred in redacting information that did not pertain to Mr. Phillips from responsive emails disclosed to him. KRS 197.025(2) speaks directly to this issue. It states:
KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
Numerous open records decisions issued by this office affirm a correctional facility's right to deny an inmate's request for records, or portions of records, that do not contain a specific reference to the requesting inmate. See, e.g., 04-ORD-071 (enclosed) and authorities cited therein. LSCC did not violate the Open Records Act in redacting information that did not relate to Mr. Phillips from the emails disclosed to him.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 LSCC later explained that Mr. Phillips' request was received and date stamped on January 14, 2016, and that its January 19, 2016, response was therefore timely under the five day deadline for Department of Corrections open records responses found at KRS 197.025(7).
2 KRS 61.878(1)(1) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
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 Because Mr. Phillips' "must make a prima facie showing that [additional] records do exist," the responsibility was his to obtain affidavits attesting to the existence of those records from the individuals he identified by name or title. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005).
5 Mr. Phillips did not provide Ms. Harper with a copy of his March 9 letter. She learned, through Mr. Riggs, that Mr. Phillips was particularly interested in Ms. Conley's emails.