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 Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in the disposition of inmate James Harrison's February 7, 2017, request to inspect a draft settlement agreement previously rejected by him. For the reasons that follow, we find that EKCC's response was untimely but was in compliance with the Act.
In his request, which was received in the Records Department on February 8, 2017, Mr. Harrison stated as follows:
In December, 2016, Grievance Coordinator Elam had me to review some records by General Counsel concerning a settlement agreement in a civil action in Morgan County[.] He (Elam) said he would send me a copy, but I've never received them even after signing my name that I did not agree to the terms therein.
In a response to this appeal dated March 7, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, acknowledges that "[i]t appears that staff inadvertently did not send a written response [to the request] with an appointment time within five days." We therefore find that EKCC's response was untimely under KRS 197.025(7), which requires the Department of Corrections to respond to an inmate's open records request within five days, excluding weekends and legal holidays.
EKCC's response, which was dated February 22, 2017, stated: "The original was destroyed, due to Mr. Harrison not agreeing with it." Below this, Mr. Harrison made the following notation:
I've reviewed the copy of settlement agreement that were [ sic ] unsigned and undated as on this 22, day of February, 2017, as I've been informed the others I signed were destroyed. My signature this date is for what I've reviewed, and not that I was or am in agreement with those documents being destroyed.
Mr. Harrison initiated an open records appeal, which was received in this office on March 1, 2017. He argues that his handwritten note on the draft settlement agreement, indicating his non-agreement, should have been preserved.
Ms. Barker's response to the appeal includes a statement from Darren Elam, Administrative Specialist III, who serves as litigation coordinator at EKCC, which involves assisting Corrections attorneys with litigation. Mr. Elam states that he met with Mr. Harrison in December 2016 to review "records sent by counsel" concerning a potential settlement of a case, at which time Mr. Harrison "wrote on the paper saying he did not agree with this." Mr. Elam "did not retain the copy with his note because he did not execute the agreement and it was not needed."
EKCC argues that Mr. Harrison's note on the draft agreement "would be considered as routine correspondence" and therefore could be destroyed when the facility no longer needed it. "Once the inmate told Darren Elam that he did not agree with the draft, then the record was no longer needed at EKCC since Elam was acting to assist counsel in the Legal Services Office. The agreement was not executed, so it never became more than a draft. . . . The note written on the draft was no more than routine correspondence and EKCC did not need to retain it."
As the Attorney General has previously noted, "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.
Since a note written by an inmate on an unexecuted draft settlement agreement does involve written correspondence between the inmate and the institution and is of a non-policy nature, it is proper for EKCC to treat such a note as "general correspondence. " Therefore, the facility had the discretion to destroy it when it was 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. Since EKCC has given a reasonable explanation for why the document no longer exists, we find that its actions were in accordance with the Open Records Act, except insofar as the response to Mr. Harrison's request was untimely.
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.