Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Kentucky Open Records Act when it denied an inmate's request for a disciplinary report that had been dismissed. George Hopkins, an inmate at the Luther Luckett Correctional Complex, requested a "copy of [Disciplinary Report] 9/13/16 (dismissed)." Pursuant to KRS 197.025(7), LLCC had five calendar days, excepting Saturdays, Sundays and legal holidays, to provide a response. On October 28, 2016, a timely response was sent by LLCC Offender Records Supervisor Heather McManis wherein she stated: "Please be advised that the disciplinary report was dismissed. When the institution dismisses the disciplinary violations they are deleted from our KOMS system. It is for the above reason that I am closing out your open records request as there is no documentation to provide you."
In his letter of appeal, Mr. Hopkins argues that LLCC improperly denied this request because he believes the institution violated its own policy in deleting the disciplinary report. Mr. Hopkins explains, in his appeal:
To demonstrate briefly, Corrections Policies and Procedures ("CPP") 15.6, entitled "Adjustment Procedures and Programs," is the agency's policy governing disciplinary procedures. In its entirety, Section IIC3(2)(d) reads as follows:
If during the investigation, the investigator determines there is insufficient evidence to support a charge against the inmate, he shall dismiss the disciplinary report. Further action shall not be taken on the report other than placing it in a designated file for record-keeping purposes . (emphasis added).
Mr. Hopkins further points out that CPP 15.6 is codified at 501 KAR 6:020 where Section 1 incorporates, by reference, Department of Corrections Policies and Procedures, including CPP 15.6.
In response to Mr. Hopkins' appeal, Oran S. McFarlan, III, attorney, Justice and Public Safety Cabinet, explained:
As noted in the Appeal (p. 1), "[t]he disciplinary report was dismissed at the investigation stage." By statute, LLCC's warden is required to "expunge inmate prison disciplinary reports that have been dismissed or otherwise ordered void, and shall further remove any reference to dismissed or voided disciplinary reports from inmate records." KRS 196.180(3). This is exactly what happened here, and thus "there is no documentation to provide [Mr. Hopkins]." Appeal p.4.
Mr. McFarlan is correct in his reference to KRS 196.180(3) as providing authority for LLCC to expunge inmate disciplinary reports that have been dismissed. KRS 196.180(3) states: "The warden of each Department of Corrections institution shall expunge inmate prison disciplinary reports that have been dismissed or otherwise ordered void, and shall further remove any reference to dismissed or voided disciplinary reports from inmate records. "
The conflict between CPP 15.6 and KRS 196.180(3) must be decided in favor of the statute. In addressing the issue of a conflict between an administrative regulation and a statute, this office in 97-ORD-136, page 2, explained:
"Administrative regulations properly adopted and filed have the full effect of law and are required to be enforced." Harrison's Sanitarium, Inc., v. Department of Health, Ky., 417 S.W.2d 137, 138 (1967). To be valid, such regulations:
Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418, 422 (1948). Simply stated, regulations are valid as long as they are consistent with the statutes authorizing them.
If, on the other hand, a regulation "exceeds statutory authority or [is], in some way, . . . repugnant to the statutory scheme," it is invalid. Revenue Cabinet v. Joy Technologies, Inc., Ky. App., 838 S.W.2d 406, 409 (1992); Robertson v. Schein, 305 Ky. 528, 204 S.W.2d 954 (1947); Curtis v. Belden Electric Wire & Cable, Ky. App., 760 S.W.2d 97 (1988). Fundamental to this rule of law is the proposition that "encroachment upon the legislative power would be in direct violation of Sections 27 and 28 of our Constitution." Id. The rule codified at KRS 13A.120(2)(i) which provides that "an administrative body shall not promulgate administrative regulations . . . which modify or vitiate a statute or its intent." Thus, "an administrative agency cannot, by its rules and regulations, amend, alter, enlarge, or limit the terms of a legislative enactment." Curtis at 99.
That portion of the regulation (CPP 15.6) that states that a dismissed disciplinary report shall be placed in a designated file for record-keeping purposes, is in direct conflict with the statute's (KRS 196.180(3)) requirement that the warden "remove any reference to dismissed or voided reports from inmate records" and so cannot be enforced under the authority of the Open Records Act as advocated by Mr. Hopkins.
Mr. McFarlan is also correct in stating that since the disciplinary report was expunged, it cannot be provided: "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194. Luther Luckett Correctional Complex did not violate the Kentucky Open Records Act when it did not provide the records requested by Mr. Hopkins.
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.