Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act by denying an inmate access to a restitution record. We find that LLCC did not violate the Open Records Act by denying access to the requested record.
Johnny Cissell, an inmate at LLCC, on August 2, 2016, sent a request for records to the LLCC Records Department, for a copy of a "decision made on March 2014" that there would no longer be any restitution charges for medical bills. The request was stamped received by LLCC on August 4, 2016, and LLCC responded on August 4th, stating that "[t]he contract records that you request do not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2)."
In his appeal of the denial, Mr. Cissell included a printed note, signed by Mrs. Blair, Inmate Accounts, to Mr. Cissell, that explained that he had been paying a medical restitution with a start date of 3/15/2013. Ms. Blair went on to explain that, "[i]n March of 2014, when it was passed that there will no longer be any medical restitution charges, it was to be from that time forward. Anyone that has received a medical restitution charge prior to March of 2014 is still paying their debt. Therefore, I have not and cannot do away with any of those medical restitutions. " In his appeal, Mr. Cissell also stated that he had filed a grievance "due to the fact [his] rights [were] being violated under the Freedom of Information Act" and that rejection of his grievance was "[i]n further violation of [his] rights."
Responding to the appeal on behalf of LLCC, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, explained that "[t]he restitution decision record does not contain a specific reference to Mr. Cissell. It is an email concerning restitution in adjustment proceedings and other unrelated issues. It does not contain a reference to a specific inmate. The email came about because of a new contract, but it was an inadvertent error to refer to a contract in the response, since the responsive record is an email. The stated exception still applies to the email. " Ms. Barker's response cited numerous decisions of this Office that uphold the authority of correctional facilities, pursuant to KRS 197.025(2), as incorporated by the Open Records statute KRS 61.878(1)(l), to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See, e.g. 15-ORD-220 and authorities cited therein.
Ms. Barker also noted that Mr. Cissell's request was for a record of a "March 2014 decision" but that a decision record "was not created." Ms. Barker also stated that the "review date" was from the date of the Medical Services provider contract which was in March 2014. An email from Sonya Angell, Fiscal Manager LLCC, dated August 22, 2016, was attached to Ms. Barker's response to this appeal. Ms. Angell's email explained that "LLCC received [an] email dated March 5, 2015 that indicated restitution for medical services should no longer be used in adjustment proceedings. LLCC applies this change in restitution from March 1, 2014, which is the date of the Medical Services provider contract . . ." but "[ n]o March 2014 decision record was created, so LLCC cannot provide a March 2014 decision record ." (Emphasis added.) KRS 61.870(2) is the statute that defines "public record," in relevant part, as records that are "prepared, owned, used, in the possession of or retained by a public agency. " When an agency cannot produce a record, the complaining party must make a prima facie showing that such records do exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 07-ORD-188. The record of this appeal does not demonstrate that the requested "decision record" exists, and therefore KSP did not violate the Open Records Act in not providing the requested record. Consistent with 93-ORD-134 a public agency cannot afford a requester access to records which do not exist.
Finally, as stated by Ms. Barker, LLCC was not required by the federal Freedom of Information Act to provide state records as asserted by Mr. Cissell. Ms. Barker's response to the appeal cited an earlier Open Records Decision, 96-ORD-244, which determined that "[The Freedom of Information Act] has no force as to state records, only the records of a federal agency." 96-ORD-244, citing OAG 91-56. We concur with the authority cited and Ms. Barker's conclusion that citing to the Federal Act does not entitle a requester to the state records he seeks.
As the requested record does not exist, and the other most nearly responsive record does not contain a specific reference to Mr. Cissell, LLCC did not violate the Open Records Act when it did not provide him with responsive records. Mr. Cissell's reference to the federal Freedom of Information Act has no application to Kentucky state 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.