Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Kentucky Open Records Act in its disposition of inmate Uriah Pasha's November 7, 2016, request for "[a] copy of all sign-in sheets used to record the days Uriah Pasha worked from October 15, 2015 up until November 4, 2016." We find no substantive violation of the Act.
Mr. Pasha's request was received on November 9, 2016. On November 16, 2016, KSR Offender Information Specialist Kathy Garrison responded:
I am still making efforts in requesting these reports. I will continue searching for these documents and our next correspondence will be on or before December 2, 2016.
We note that KRS 197.025(7) provides as follows:
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.
TWe find that KSR did not fully comply with this subsection. The initial response was timely, but it did not clearly state that the records were "unavailable" or that they were expected to be available by a certain date.
While the facility made an effort to comply with the terms of KRS 197.025(7), the "unavailable" language applies only to situations in which the record is truly unavailable. If retrieval of these documents proved difficult because of a records management issue, KSR is encouraged to contact the Department of Libraries and Archives for assistance. 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).
On December 2, 2016, Ms. Garrison issued the facility's final response to Mr. Pasha. The sheets for Unit B were provided because they were pre-printed with Mr. Pasha's name. KSR denied the sheets for Unit D, however, stating:
After reviewing the sign in sheets from Unit D for the requested date range, I did not see where you signed in for days worked, therefore I cannot release these records to you based on KRS 61.878(1)(l) and KRS 197.025(2). KRS 197.025(2) states that the Department of Corrections is not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains a specific reference to that individual. KRS 197.025(2) applies to your request as an enactment of the General Assembly (See KRS 61.878(1)(l)). Since the public record(s) you requested do not contain a specific reference to you, the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2).
Mr. Pasha's appeal was received in this office on December 13, 2016. He alleges that he signed in on the Unit D sheets using a "mark" instead of his name, and that therefore the records do contain a specific reference to him.
On December 29, 2016, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal. She provides a sworn affidavit from Correctional Unit Administrator John Grevious, who attests to the following:
Inmate Uriah Pasha (092028) was assigned to work in Unit D during the following time periods:
10/15/2015 - 03/03/2016
04/01/2016 - 07/05/2016
09/19/2016 - 11/02/2016
Inmate Pasha's work assignment as Unit D Special Detail required him to sign in for time worked, which he failed to do. I spoke with him regarding this requirement and I gave him a warning. He was told he would get paid for the time he had already worked, but going forward he would be required to sign in or he would not be paid.
The sign in sheets for Unit D are not computer generated and do not include a specific reference to an inmate unless the inmate signs the sheet. None of the sheets reviewed for Inmate Pasha's request included any reference to him.
We have reviewed an exemplar from among those sign-in sheets. We note that various names are signed, but Mr. Pasha's name is not among them; nor is there any mark made in place of a signature.
KRS 197.025(2) provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, the department 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.
The Attorney General has long interpreted this provision as meaning that only documents mentioning the inmate by name need be provided. See, e.g. , 99-ORD-157. Since the sign-in sheets for Unit D do not mention Mr. Pasha by name, KRS 197.025(2) is dispositive of this appeal and KSR properly denied inspection of the records.
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 proceedings.