Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Johnny R. Phillips appeals the Department of Correction's disposition of his open records request, dated January 7, 2015, but received and date stamped by DOC on February 1, 2016. Mr. Phillips initially complained that he received no response to his request from DOC. He has since acknowledged receipt of DOC's February 8 response on February 16, 2016, but complains that the response was untimely and that it failed to adequately address his request for emails exchanged by correctional facilities and DOC Central Office relating to his "one to two dozen transfers in the past five years."
In response to questions presented to DOC under authority of KRS 61.880(2)(c), 1 DOC explained that, under the terms of KRS 197.025(7), 2 its February 8, 2016, response to Mr. Phillips' request was timely. 3 With reference to our inquiry concerning the emailed notes identified in Mr. Phillips' request, DOC indicated that it is prepared to disclose 22 "additional documents that were not initially offered to Mr. Phillips" upon prepayment of copying fees. In conflicting statements that appear in DOC counsel's response to our KRS 61.880(2)(c) inquiry, the agency indicated that the emailed notes were being withheld pursuant to KRS 61.878(1)(i) and (j), as construed in 15-ORD-103, because they "do not provide notice of final agency action. " In her March 30 supplemental response to Mr. Phillips' request, also precipitated by our KRS 61.880(2)(c) inquiry, Offender Information Service's Administrative Specialist III Brandi Hawkins confirmed that case notes provided to her as an attachment to DOC Population Management staff email in the course of her second search, were excluded from inspection by KRS 61.878(1)(i) and (j).
We affirm DOC's position on the timeliness of its original response to Mr. Phillips' request. The only "proof" of its timeliness that appears in the record is the date stamp that appears on DOC's copy of his original request, dated January 7 but date stamped as received by Offender Information Services on February 1, 2016. Mr. Phillips presents no proof, such as a copy of the legal mail log, to substantiate his argument that the response was untimely. In view of the five business day deadline for Department of Corrections' responses authorized by KRS 197.025(7), we find that its response to Mr. Phillips' request was timely. In addition we affirm DOC's insistence, in its original and supplemental response, that Mr. Phillips prepay for copies of responsive records. KRS 61.872(3)(b), KRS 61.874(1), 4 and
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985) 5 resolve this question without need of further discussion.
As noted, we questioned the adequacy of DOC's initial search for records responsive to Mr. Phillips' request for "emails, notes, . . . requests for transfers, approvals, [or] justification." For this reason, we requested additional information from DOC to substantiate its position under authority of KRS 61.880(2)(c). In conflicting responses DOC advised that, prompted by our question, it searched KOMs and contacted James Sweatt, DOC Population Management, locating twenty-two additional documents that were not originally located and that included staff emails relating to Mr. Phillips' transfers. In her affidavit, Ms. Hawkins indicated that the emails are available to Mr. Phillips upon prepayment of copying fees, but in her March 30 supplemental response addressed to Mr. Phillips she advised him that emails, which included case notes, were being withheld under KRS 61.878(1)(i) and (j) because they "do not provide notice of final agency action. " In support DOC cited 15-ORD-103, an appeal involving Mr. Phillips but not involving the same records.
In 15-ORD-103 we affirmed Northpoint Training Center's reliance on KRS 61.878(1)(i) and (j) to deny Mr. Phillip's request, insofar as it implicated " unapproved transfer authorization forms and related notes." (Emphasis added.) We explained that, because the transfers were "not implemented," they were "not adopted as the basis of final action and retained their preliminary character." 15-ORD-103, p. 4. The emailed notes to which Mr. Phillips requests access in the appeal before us relate to approved transfers. The notes supporting these transfers forfeited their preliminary characterization when they were adopted as the basis of final action, namely, the approved transfer. The records at issue in 15-ORD-103 are distinguishable from the records at issue in this appeal. Neither that decision, nor KRS 61.878(1)(i) and (j), authorize DOC's denial of Mr. Phillips' request as it relates to "emails, notes, . . . requests for transfers, approvals, [or] justifications." Its reliance on these authorities to deny him access to these records constituted a violation of the Open Records Act.
Under the standard for an adequate search recognized in 95-ORD-96, we find that DOC did not originally "make a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." Until questioned by this office under authority of KRS 61.880(2)(c), DOC did not conduct a search using methods reasonably calculated to produce all responsive records. DOC offers no explanation why these methods for locating responsive records were not employed in its initial search. While we appreciate its belated efforts to search KOMs and contact Mr. Sweatt, DOC must ensure that its initial search satisfies the standard for an adequate search and that it can reasonably be expected to capture all responsive records.
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 KRS 61.880(2)(c) states:
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.)
2 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."
3 March 30, 2016, affidavit of Brandi Hawkins.
4 KRS 61.872(3)(b) states, in part, that "[i]f the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing." KRS 61.874(1) further states, in part, that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate."
5 In Friend v. Rees , Kentucky's courts recognized that an inmate is entitled to copies of nonexempt public records upon payment of a reasonable copying fee of ten cents per page.