Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Eastern Kentucky Correctional Complex violated the Open Records Act in its disposition of inmate James Harrison's August 10, 2017, open records request for "a copy of the appliance card issued to me by Deputy Keith Helton in March 2017 before Lt. Abe Felton issued me another card in July 2017." For the reasons stated below, we find no violation of the Act.
On August 15, 2017, records custodian Sonya Wright responded to Mr. Harrison's request: "I spoke to Lt. Abe Felton in regards to this request. He stated that the first card was d[e]stroyed upon issue of your new card. He stated only one card per person and old ones are destroyed and no longer exist." Mr. Harrison's appeal was received in this office on August 18, 2017. He complains that the practice of destroying an inmate's old appliance card is "arbitrary" and subverts the intent of the Open Records Act.
In a response dated August 28, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, reiterates that "[t]he card he sought was destroyed when a new card was issued updating his appliances. " 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. The practice of maintaining only the current appliance card is reasonably presented as a means of ensuring that the listing of an inmate's authorized appliances is accurate. Accordingly, as the nonexistence of the old card has been established, we find no violation of the Act.
Mr. Harrison also alleges that the destruction of the card was inconsistent with proper records management procedures. In response, Ms. Barker explains:
The appliance card is in the nature of working notes for EKCC staff to allow communication on different shifts and among security staff who may have to address an inmate's property. It is not the record used to reflect all property owned by an inmate. It falls under the General Schedule for State Agencies in the series M0002 general correspondence, which may be retained for no longer than two years and may be destroyed when no longer needed. . . .
In light of this explanation, we find no substantial issue as to the consistency of EKCC's records management practices with the applicable records retention schedules. See 17-ORD-057 (general correspondence may be destroyed when no longer needed, at state agency's discretion).
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.