Request By:
James Harrison, # 095435
Amanda Carter
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
James Harrison, an inmate at Eastern Kentucky Correctional Complex (EKCC), submitted two open records requests to EKCC for records that would have included letters he wrote to a Deputy Warden and to a contract physician. Eastern Kentucky Correctional Complex (EKCC) conducted a thorough search for the requested records but found no responsive records. For the reasons stated below, we find that EKCC did not violate the Open Records Act in its disposition of Mr. Harrison's requests.
Mr. Harrison's first request, dated February 6, 2017, was to inspect "all documentations from me and/or anyone on my behalf, including responses, denials, etc., pertaining to a spacer for the inhalers I've been issued. [ sic ]" The "Disposition" portion of the Open Records Request form used in this instance, was completed by Amanda Carter, Medical Records Secretary, and she stated: "Requested records were viewed on 1/10/17 and no copies were requested." Mr. Harrison takes issue with EKCC's disposition of his request because he was "only shown one document by Doctor Lester Lewis" but he knows there must be additional documents responsive to his request. He supports his argument regarding the existence of additional documents by stating that he wrote two letters relating to the spacer, 1 one letter was dated November 12, 2016, and another dated December 8, 2016, to Deputy Warden Keith Helton. His reasoning is that, since those letters were not with the record he reviewed, he was not allowed to inspect all responsive records.
Mr. Harrison filed a second appeal regarding a records request he made on February 8, 2017, requesting a copy of "my October 27, 2016 correspondence to Doctor Lewis and any dispositional documentation concerning that October 27, 2016 correspondence, including all documentation in relation[] to that 10/27/16 correspondence regardless of its description." Ms. Carter answered that request in writing on February 10, 2017, stating that there "is no public record maintained by the Department of Corrections responsive to your request." Mr. Harrison appealed this response as he believes his October 27, 2016, correspondence to Dr. Lewis should have been produced in response to his request.
On behalf of EKCC, Ms. Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded by letter dated March 7, 2017. Ms. Barker provided a signed statement by Amanda Carter in which she stated that she had conducted an extensive search of Mr. Harrison's electronic medical records but was unable to find any of the letters written by Mr. Harrison to Dr. Lewis. According to Ms. Carter, during Mr. Harrison's inspection of the healthcare provider notes regarding him, he requested to see letters he had written to Dr. Lewis and a Deputy Warden. Ms. Carter informed him that she did not have those letters.
As Ms. Carter had been unable to find Mr. Harrison's letters in his medical records, Sonya Wright, Offender Records Specialist conducted a thorough search of the Kentucky Offender Management System for the requested records. Ms. Wright provided a statement wherein she explained that she conducted a search for the records described in Mr. Harrison's appeal but found none of those records. Finally, Deputy Warden Keith Helton, EKCC, provided a statement in which he said "this office has conducted a thorough search of our records and nothing pertaining to inmate Harrison was found."
Ms. Barker's letter also explained that Dr. Lewis is not an employee of EKCC and his services are provided by a contract medical services company, Correct Care Solutions, LLC. In the event that Mr. Harrison wishes to pursue his request with Correct Care Solutions, Ms. Barker provided the street address for Correct Care Solutions, LLC, but stated, "upon information and belief, the company is not subject to the Open Records Act in Kentucky."
Mr. Harrison's appeal also asserts that EKCC was required to retain his letters to Dr. Lewis and Deputy Warden Helton for at least two years. Ms. Barker addressed this issue in her response. "The retention schedule allows general correspondence to be kept up to two years and nothing requires that it be retained beyond the time that it is needed. (General Schedule M0002.) This type of record has been explained by the AG to inmate Harrison in the past. See 09-ORD-044. See also 15-ORD-144, 14-ORD-074, 08-ORD-015."
As the Attorney General has noted in prior decisions, "routine correspondence" (also known as "general correspondence" ) is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency, ? which are better documented by other records maintained by the agency." (See Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0002.) It is in the nature of a "tool[] which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626. It has an indefinite retention period, but may be retained "no longer than two years." Id. Discretion rests with the agency and user to determine whether general correspondence need be retained. No requirement exists for the permanent archiving of these records. 00-ORD-132.
As the retention schedule for Routine Correspondence gives EKCC discretion to determine how long such correspondence is retained, EKCC cannot be faulted for not retaining Mr. Harrison's letters to Dr. Lewis and Deputy Warden Helton. We make no determination that EKCC ever possessed these letters, merely that there is no requirement under the General Schedule for EKCC to have retained those letters. Therefore, the facility had the discretion to discard them when they were not needed. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Mr. Harrison asserts that all records responsive to his request have not been provided, but EKCC has fulfilled its obligations under the Open Records Act by allowing Mr. Harrison to inspect the available records, notifying him that the specific records he described were not found and, upon appeal, conducting additional searches in KOMS and of Deputy Warden Helton's office. Mr. Harrison provided no evidence, beyond mere allegations, that the requested records ever existed or were possessed by EKCC. See 09-ORD-129 (KSP did not violate Open Records Act in denying request for nonexistent complaint and investigative file as no such records were created or existed in the possession of KSP and no evidence to contrary was presented on appeal "beyond mere assertions"); 12-ORD-037 (absent proof beyond a bare claim that records being sought existed, or that search by the agency for those records was inadequate, Attorney General declined to find that agency violated the Act). We find no violation of the Kentucky Open Records Act by Eastern Kentucky Correctional Complex in the disposition of Mr. Harrison's Open Records Requests.
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.
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