17-ORD-058
March 29, 2017
In re: Chris Hawkins/Little Sandy Correctional Complex
Summary: Any issues relating to records that Little Sandy Correctional Complex ultimately provided to requester, including specified case notes and property form, are moot per 40 KAR 1:030, Section 6; LSCC properly denied request for specified listing on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as it does not contain a specific reference to inmate requester.
Open Records Decision
Chris Hawkins initiated this appeal by letter dated February 23, 2017, challenging the partial denial by Little Sandy Correctional Complex (“LSCC”) of his February 21, 2017, request for six items that he described as follows:
1) Transfer Authorization Forms from my being transferred from LLCC to [Kentucky State Reformatory, “KSR”] on 12-29-16 and from KSR to LSCC on 2-3-17;
2) Case Notes for 1-1-16 through 2-21-16;
3) Copy of notes sent from CTO Blair to LSCC canteen staff authorizing me to order lotion;
4) Copy of Part I and Part II of the disciplinary report [for] any inmates who were involved in assaulting me at KSR on 1-15-17 (including David Ames/Amos);
5) Property Form that KSR sent with my property to LSCC on 2-13-17; and
6) [S]pecific listing of items authorized for RHU [segregation] by LSCC.
In a timely written response, LSCC agreed to provide Mr. Hawkins with forms responsive to item 1 of his request with limited redactions made pursuant to KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). LSCC denied Mr. Hawkins’ request as to case notes for January 1, 2017, through February 21, 2017, citing KRS 61.878(1)(i) and (j). Beth Harper, LSCC Records Department, further advised Mr. Hawkins that she had spoken with CTO Blair “and he said that there are no letters or notes that have been sent to the Canteen on your behalf for authorizing you to order lotion.”1 Ms. Harper indicated that a property form responsive to item 5 of the request was enclosed. However, LSCC denied Mr. Hawkins’ request for a “specific listing” of items because such a list does not contain a specific reference to him and is therefore
exempt under KRS 197.025(2),2 incorporated into the Open Records Act by operation of KRS 61.878(1)(l).3
On appeal Mr. Hawkins raised three issues concerning the disposition of his February 21, 2017, request: 1) the requested case notes were not provided; 2) he was provided with a copy of the wrong property form; and 3) the requested list of items allowed in segregation was not provided. In addressing Mr. Hawkins’ first contention, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, advised on behalf of LSCC that the Department of Corrections (“DOC”) recently agreed to provide Mr. Hawkins with specified case notes in responding to Log No. 201700037 (with redactions due to security concerns per KRS 197.025(1) as in this case).4 Mr. Hawkins had apparently failed to submit payment for the case notes previously offered. LSCC agreed to provide Mr. Hawkins with responsive case notes that were not previously offered upon payment of the associated costs.5 Ms. Barker explained that LLCC conducted another search for the requested property form but determined that it had never been received from KSR; she attached Sergeant Michael Cepeda’s March 7, 2017, letter confirming as much.
In reaffirming the agency’s denial as to a specific listing of items allowed for RHU, Ms. Barker observed that the “LSCC institutional policy does not contain a specific reference to” Mr. Hawkins. Accordingly, KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), expressly authorizes LLCC to deny access. Citing a line of decisions by this office, LSCC advised that the Attorney General has consistently affirmed the denials by correctional facilities of requests for such policies and procedures on the basis of this provision.
By letter dated March 10, 2017, Ms. Barker supplemented her appeal response on behalf of LSCC. Ms. Barker advised that “additional information was obtained concerning the property form for another appeal concerning it after the initial response was filed.” LSCC incorporated by reference the arguments contained in the March 10, 2017, letter of Ms. Barker directed to Assistant Attorney General Gordon Slone regarding Log Number 201700084. Ms. Barker explained that when the first request for the form was received (Log #201700082), Sergeant Cepeda checked the inmate folder for Mr. Hawkins and no form had been received for him.6 Upon receiving the second request for the property form containing the information about seeing KSR staff place the form with his property, Sgt. Cepeda broke the seal on the property container and located the record in his property as described on appeal by Mr. Hawkins. Papers with an inmate’s property are considered personal papers of the inmate, Ms. Barker clarified, and not documents obtainable via requests made under the Open Records Act. Ms. Barker advised that a copy of the requested form was made and was being provided contemporaneously with her appeal response.
Ms. Barker attached the March 10, 2017, letter that Ms. Harper directed to Mr. Hawkins confirming that a copy of the requested property form was enclosed. Accordingly, Ms. Barker was correct in asserting that any issues regarding the form, as with case notes that were ultimately provided (see note 5), have been rendered moot per 40 KAR 1:030, Section 6, pursuant to which, “If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.” The remaining justiciable issue raised on appeal is whether LSCC properly denied Mr. Hawkins’ request for the “specific listing of items authorizing for RHU.”
As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes correctional facilities like LLCC to deny a request from any inmate unless the record(s) contains a specific reference to that inmate. See 00-ORD-040; 03-OR-074; 07-ORD-219; 10-ORD-136; 12-ORD-070; 13-ORD-013. Because the requested list (or policy) does not contain a specific reference to Mr. Hawkins, as required under KRS 197.025(2), he is not entitled to inspect or to receive a copy of that record, notwithstanding his underlying concerns. Regardless of the hardship Mr. Hawkins may believe that application of KRS 197.025(2) imposes under the circumstances, he is expressly precluded from gaining access to any record which does not contain a specific reference to him by the mandatory language of this provision; accordingly, LLCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 99-ORD-161, p. 2. To the extent any related issues have not been rendered moot per 40 KAR 1:030, Section 6, by disclosure of existing responsive documents, the denial by LSCC is affirmed on the merits consistent with existing legal authorities.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.
Andy Beshear
Attorney General
Michelle D. Harrison
Assistant Attorney General
#82
Distributed to:
Chris Hawkins, #103061
Beth Harper
Amy V. Barker
[1] A public agency cannot produce a nonexistent record for inspection or copying nor must a public agency “prove a negative” in order to refute an unsubstantiated claim that a certain record exists. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011). Assuming that LSCC made “a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested” (and no contrary evidence has been presented), it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no such notes were located. 05-ORD-109, p. 3; see 11-ORD-091. Further discussion is unnecessary given that Mr. Hawkins did not challenge this aspect of the denial.
[2] KRS 197.025(2) provides:
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.
[3] KRS 61.878(1)(l) removes from application of the Open Records Act “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.”
[4] Ms. Barker correctly asserted that such redactions were upheld in 17-ORD-032 (In re: Chris Hawkins/Kentucky State Reformatory) and further argued that the Attorney General should follow the analysis contained in 17-ORD-032 regarding application of KRS 197.025(1). Inasmuch as the instant appeal presents no basis to depart from this governing precedent, nor has Mr. Hawkins challenged this aspect of the agency’s response, this office hereby adopts the analysis contained at pp. 3-4 of 17-ORD-032 on this issue.
[5] Attached to Ms. Barker’s appeal response was a copy of Ms. Harper’s March 6, 2017, letter to Mr. Hawkins, advising that he was provided with case notes for September 1, 2015, to February 4, 2016, on February 8, 2016; however, on February 21, 2017, he requested case notes for January 1, 2016, to February 21, 2017. Ms. Harper correctly observed that a public agency is not required to honor a duplicative request unless the requester provides a reason why the agency should reproduce the records that were previously requested and received a second time. In addition, LSCC advised that case notes for March 1, 2016, to February 1, 2017, would be provided upon payment of the copying fee in the amount of eighty (80) cents. Accordingly, the related issues have been rendered moot per 40 KAR 1:030, Section 6.
[6] When LSCC receives advance notice of a transfer, Ms. Barker explained, “it makes folders for each inmate being transferred to hold forms needed for each inmate upon arrival and to receive the property inventory form sent with the inmate.”