Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory ("KSR") violated the Kentucky Open Records Act ("Act") in the disposition of Johnny Phillips' July 25, 2017, request to inspect five categories of records described as follows:
1) 2017 Transfer Request(s) & Approvals;
2) GRCC, EKCC & KSR Legal Mail Logs for 2017;
3) Kosher Meal Program Records;
4) Grievances filed by me at GRCC & KSR in 2017; and
5) Any/All Incident Reports, Write-ups and Any/All KYDOC staff emails, text[s], [iPhone] messages or the like generated regarding (1) through (5) including all memorandums, directives, resolution[s] or investigative materials generated regarding same between specifically any KYDOC Grievance coordinators at GRCC, LSCC, KSR[,] John Dunn, Central Office, Classification Branch Managers, Commissioner's Office, General Counsel for KYDOC, KY Attorney Generals [sic] or any others who[] may have been involved or contacted in these matters.
In a timely written response per KRS 197.025(7), Offender Information Specialist Kim Campbell confirmed receipt of Mr. Phillips' request but advised Mr. Phillips to contact his caseworker "and have them sign and approve this 'open records request form.' It also appears that this is an outdated form. I will make sure that your CTO receives the most updated version for future use." Ms. Campbell further explained that Mr. Phillips' failure to use the current version of the form would "NOT prohibit you from getting this particular form signed and returned to me for this request though. Once I receive the signed form I will begin to work on your request." In the interest of efficiency, Ms. Campbell noted that KSR "is not the custodian of some of the records you are requesting. KSR does not have access to EKCC or GRCC legal mail logs. . . . KSR also does not have access to grievances filed at GRCC" or the related e-mails. Accordingly, KSR provided Mr. Phillips with contact information for Eastern Kentucky Correctional Complex ("EKCC") and Green River Correctional Complex ("GRCC"), consistent with KRS 61.872(4). 1
Before addressing the relevant legal issues presented, this office notes that many of the allegations that Mr. Phillips made in his August 7, 2017, letter of appeal, regarding the "criminal misconduct" of the Records Department Staff at KSR, in addition to his August 22, 2017, supplemental correspondence regarding "Criminal Acts Committed against Appellants regarding" Log Nos. 201700301 (Robert McKinney/KSR) and 201700331 (this appeal), simply cannot be resolved or addressed in this forum. "The Attorney General is not empowered to . . . resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; see 12-ORD-110 (whether agency "followed the required procedures or complied with governing law(s) aside from the Open Records Act is not a question that can be resolved here")(footnotes omitted); 15-ORD-013; 17-ORD-083. Accordingly, this office respectfully declines to consider issues that fall beyond our narrow scope of review under KRS 61.880(2).
Upon receiving notification of Mr. Phillips' appeal from this office, Ms. Barker elaborated upon the agency's denial of his request. In addressing Mr. Phillips' claim that KSR violated the Act in requiring the signature of his caseworker on the request form, i.e. , requiring his compliance with Kentucky Corrections Policy and Procedure ("CPP") 6.1, incorporated by reference in 501 KAR 6:020, Ms. Barker advised:
CPP 6.1 requires that an inmate obtain a form from the person designated by the warden. CPP 6.1, p. 3 [link omitted]. The form allows the efficient processing of numerous daily requests from a large inmate population and ensures the provision of specific information from the inmate to make sure the records are located and provided to the correct inmate and involves the CTO as a safeguard in the provision of the correct records to the correct inmate. KRS 197.025(2) requires that records contain a specific reference to the inmate requestor before the request may be satisfied. KSR has approximately 1668 inmates, often with similar names. At KSR, an inmate should obtain the required form from his Classification and Treatment Officer (CTO)(also known as caseworker) and have it signed by the CTO. . . . He has obtained the correct form on a number of occasions at KSR previously and understands the process. . . . The request was returned to [Mr. Phillips] for failing to use the required form and have it signed by his CTO.
Ms. Barker observed that the "'Attorney General's Office has found CPP 6.1 to be an acceptable way to manage the differences required in a correctional setting and security issues in numerous [decisions].'" 17-ORD-042, p. 3.
In 04-ORD-004, this office expressly upheld the validity of CPP 6.1. More specifically, the Attorney General affirmed the denial by EKCC of the inmate's request due to his failure to provide the inmate identification information required by CPP 6.1, holding that the denial was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Likewise, in 08-ORD-044, this office upheld CPP 6.1(2)B.4. (requiring inmate requesters to complete an Authorization to Use Inmate Account Form). A copy of 08-ORD-044 is attached hereto and incorporated by reference. See 05-ORD-228; 06-ORD-078; 08-ORD-157; 08-ORD-213; 09-ORD-069; 11-ORD-119. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Mr. Phillips'] statutory right of access to nonexempt public records, " and is consistent with provisions of the Open Records Act, this office finds that KSR did not violate the Act by requiring compliance with it[.]" 11-ORD-119, p. 4; 12-ORD-117 (holding that, as in 08-ORD-044 and 08-ORD-067, the inmate requester was not denied access to records but instead was required to "adhere to policies that did not 'amend, alter, enlarge, or limit the terms of the Open Records Act, '" quoting
Department of Corrections v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008)). Even assuming that Mr. Phillips had complied with CPP 6. 1, however, the agency's ultimate disposition of his request was otherwise consistent with existing legal authorities.
Again citing CPP 6.1, which in relevant part "requires that requests be sent to the Open Records Coordinator for the institution," Ms. Barker next reiterated that KSR does not possess any grievances or legal mail logs for EKCC or GRCC. Despite Mr. Phillips' assertions to the contrary, Ms. Barker continued, the Department of Corrections ("DOC") "does not maintain legal mail logs and grievances in the Kentucky Offender Management System (KOMS). . . . Nothing in [the Act] requires KSR to forward an inmate request to another custodian at another institution or DOC office. It meets its responsibilities under the law by providing the custodian and address pursuant to KRS 61.872(4)." Based upon the following, this office agrees.
The right of inspection attaches only if the record in dispute is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such record exists, or advising that it lacks possession and explaining why, as KSR ultimately did here. 13-ORD-052, p. 3. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, 2 the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. However, a public agency must explain the nonexistence of the record or its lack of possession if appropriate. See KRS 61.880(2)(c);
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 11-ORD-074. When, as in this case, a public agency denies that any responsive documents exist in the possession or custody of the agency, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-137; 15-ORD-046. KSR cannot produce that which it does not have nor is KSR required to "prove a negative" in order to refute a claim that a certain record exists in the possession or custody of the agency in the absence of a prima facie showing by the requester. See
Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037.
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " KSR promptly advised Mr. Phillips that it does not possess or maintain the record(s) being sought, and notified him that any such records would be in the custody of either EKCC or GRCC, providing the mailing address for both per KRS 61.872(4). See 17-ORD-019. Likewise, Ms. Barker clarified that KSR does not have "the texts and most of the emails and other records" described at item 5 of the request for GRCC, Little Sandy Correctional Complex ("LSCC"), DOC Central Office, and John Dunn. In accordance with KRS 61.872(4), Ms. Barker provided Mr. Phillips with contact information for the records custodian at LSCC and DOC, having already provided that information for GRCC.
With regard to any existing responsive transfer requests, approvals, write-ups, etc. Ms. Barker advised that Mr. Phillips already inspected and, in some cases, received copies of the records. Citing a line of decisions by this office dating back to 1995, Ms. Barker correctly observed that a public agency is not statutorily required to satisfy multiple requests for the same records. In other words, a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 95-ORD-47k, p. 4; 15-ORD-116. Any person submitting a duplicative request must "explain the necessity of reproducing the same records which either already have been provided or have been inspected by him, such as loss or destruction of the records." 04-ORD-018. Mr. Phillips did not offer any such justification here. Insofar as Mr. Phillips' July 25, 2017, request was duplicative, this office finds no error in the agency's denial on that basis.
In denying Mr. Phillips' request as to "Kosher Meal Program Records," and legal mail log entries that lack a specific reference to him, KSR cited KRS 197.025(2), incorporated into the Act by operation of KRS 61.878(1)(l), in support of its position. 3 The Attorney General has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like KSR to deny a request by any inmate unless the record(s) contains a specific reference to that inmate. See 08-ORD-008 (affirming denial of inmate request for menus, Aramark food services contracts, etc. on basis of KRS 197.025(2)); 10-ORD-216. Because the remaining documents and entries at issue do not contain a specific reference to Mr. Phillips, as required by the language of KRS 197.025(2), he is not entitled to inspect such records, or to receive copies thereof, notwithstanding his underlying concerns. The denial is affirmed in this regard. 99-ORD-161, p. 2; 17-ORD-054.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Mr. Phillips also submitted a separate request dated July 15, 2017, for the "'Lab results' & a]nything related to most recent 'lab results.'" On appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, advised that nobody in the Medical Records Department received the request; however, by letter dated August 24, 2017, D-12 Medical Records Clerk Marlene Powell notified Mr. Phillips that upon researching his chart, she located four pages of lab results dated July 14, 2017, as well as the order for the labs, consisting of two pages, "and the 3-week follow up with Jeff Ingram ARNP." Ms. Powell agreed to send the requested copies to Mr. Phillips upon receipt of payment. Accordingly, the issues regarding this request 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."
2 See KRS 61.8715.
3 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.