Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Hopkins County Jail ("Jail" ) violated the Open Records Act in its disposition of an inmate's open records request. The parties dispute whether the Jail produced a record to the inmate. The Attorney General is unable to resolve factual disputes about the production of records in the context of an open records appeal.
Mr. Kurt Lowe, an inmate at the Green River Correctional Complex ("GRCC"), filed an appeal to this office requesting a finding that the Jail violated the Open Records Act. In his appeal, Mr. Lowe alleged that on September 16, 2016, he requested from the Jail:
Any and all: Emails, text messages, I-Phone messages, requests, approval notes, memoranda, or ther [sic] like, regarding my transfer from Hopkins County Jail to Green River Correctional Complex, to or from, any state agent(s) within state government, Jailers, Wardens, DOC Classification Branch, DOC Central Office, DOC Officials, Justice and Judiciary Committees or Cabinets, Senator John Schickel, Boone County Jailer or Boone County Jail, Probation and Parole, and/or any and all other state or county agencies or agents.
He alleges that the Jail did not respond to his request.
In response to Mr. Lowe's appeal, the Hopkins County Attorney stated to this office that the Jail received Mr. Lowe's open records request on September 22, 2016. The County Attorney further stated that on September 26, 2016, the Jail copied and mailed the only document in its possession pertaining to Mr. Lowe's transportation from the Jail to GRCC. The document is an email from an Administrative Secretary and Transfer Coordinator with the Department of Corrections indicating the date on which Mr. Lowe would be transferred from the Jail to GRCC and is attached to the Jail's response to this office.
In 12-ORD-065, we discussed this office's role in deciding open records appeals, stating:
In the "final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." Further this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact. " . . . Our duty is not to "conduct an investigation in order to locate records whose existence or custody is in dispute," nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." Moreover, when some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided."
(internal citations omitted). More recently, we stated that "[t]he Attorney General is not vested with statutory authority in the context of open records appeals to conduct investigations and serve as a trier of fact, and resolve questions over whether records . . . have been produced." 16-ORD-081. Rather, KRS 61.880(2)(a) provides only that "the Attorney General shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."
The record before this office does not enable us to resolve the factual dispute between the parties over whether the requested records were produced to Mr. Lowe. Mr. Lowe claims that the jail did not send him any records in response to his open records request. The Jail, through its attorney, claims it sent Mr. Lowe the only requested record in its possession. We are without the statutory authority to resolve factual disputes as to whether records were produced. Therefore, we are unable to determine whether the Jail failed to comply with the Open Records Act. We encourage the parties to continue to work together to resolve any issue.
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.