Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,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 in its disposition of inmate Chris Hawkins' September 20, 2016, request for copies of a theft report submitted on August 17, 2016, by his cellmate Anthony Fraley. For the reasons that follow, we are unable to find a substantive violation of the Act but must refer this matter to the Department for Libraries and Archives.
On September 21, 2016, Offender Records Specialist responded to Mr. Hawkins: "I cannot provide you with a theft report which another inmate filled out. The records you request concerning inmate Fraley do not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and 439.510." We note immediately that LLCC failed to cite the correct statute, as KRS 439.510 has to do with the privileged nature of information obtained by a probation or parole officer. We must deem this incorrect citation a procedural violation of KRS 61.880(1), which requires a public agency to give its legal basis for denying a request.
KRS 197.025(2), which was presumably the statute relied upon by LLCC, provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, the [D]epartment [of Corrections] 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.
We have consistently interpreted this provision as meaning that only documents mentioning the inmate by name need be provided. 03-ORD-073; 99-ORD-157. Therefore, if the theft report did not mention Mr. Hawkins by name, KRS 197.025(2) is dispositive as to the merits of Mr. Hawkins' request.
Mr. Hawkins, however, disputes the facility's assertion that the Fraley theft report does not specifically mention him. For this reason, we requested the record for in camera review pursuant to KRS 61.880(2). On November 3, 2016, Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, provided a statement from Unit Administrator I Lindsay Stemle dated November 1, 2016, stating in part:
Inmate Fraley's theft report cannot be accounted for at this time. Inmate Fraley did submit a theft report for his missing items only. The report was investigated, but due to leaving the cell door unsecure at times, it was determined that the Kentucky DOC was not responsible for replacing or reimbursement of the missing items.
? . None of Inmate Hawkins['] missing items were listed on Inmate Fraley's theft report.
It appears, therefore, that LLCC has lost or misplaced the theft report at issue. This being the case, we cannot conclusively resolve the factual issue of whether Mr. Hawkins' name appears on Mr. Fraley's theft report.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. We therefore do not find a substantive violation of the Open Records Act arising from the missing document. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the grievance has apparently been lost or misplaced by LLCC, which would indicate a records management issue.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
A party aggrieved by this decision may appeal it 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.