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 Kentucky State Reformatory ("KSR") violated the Open Records Act in the disposition of Dawn Crawford's September 18, 2017, request for various records relating to her late husband Marc Crawford, a former inmate at KSR. For the reasons that follow, we find no violation of the Act.
Ms. Crawford's request included all surveillance video and audio of Marc Crawford at KSR, including certain specified places and dates; "activity logs" from June 1 through 24, 2017, concerning Mr. Crawford; "records indicating the names of deputies and medical staff who participated in booking/ medical intake" ; records indicating the medical staff on duty during June 1 through 24, 2017; "records indicating who cared for Marc Crawford" on those dates; all his medical records for those dates; "incident logs, code sheets, telemetry Strips from AED used for Marc Crawford on June 24, 2017 and any other documentation that occurred prior to his transport" ; and "all medical and non-medical interventions ? including transportation for outside medical care" during June 2017. She requested that the facility contact her if providing the records would take more than "three business days."
In an undated letter, KSR replied that three pages of incident logs had been located and would be provided upon payment. With regard to the remainder of Ms. Crawford's request, the records custodian stated as follows:
Concerning portions of your request for "activity logs, " I am not certain what you are asking for. I tried to call you on 9/26/17 and 9/28/17 for clarification but only received your voicemail. If you can clarify your request, I will be better able to respond.
For the video records you requested for Marc Crawford, I have spoken with internal affairs and no video exists in reference to this inmate. ?
In reference to "booking information," we are not a jail so we do not have any sort [of] booking information on any inmate. ?
Finally, the Records Department does not handle medical records and you will need to contact Marlene Powell with any requests for those documents.
Ms. Crawford initiated this appeal on October 11, 2017. She states that a records supervisor called her on September 25, 2017, and explained that "they have a different time frame to which [ sic ] they would be following." 1 She further states that she did not answer the records custodian's phone calls for clarification of her request because the records supervisor had told her "we do everything by mail." Specifically in regard to the need for clarification, she states, "I am confident my request was self explanatory and I to will [ sic ] need information in writing."
As the basis for her appeal, Ms. Crawford alleges: "My husband was at KSR from June 1, 2017 until he passed June 24, 2017. I am confident more records exist other than medical, although I have sent an additional ORR to Marlene Powell as directed."
In a response to this appeal dated October 25, 2017, Justice and Public Safety Cabinet attorney T. Alex Mattingly provides a memo from Offender Information Specialist Kim Campbell, who handled the request. She states:
Regarding Mrs. Crawford's request for video, after receiving the initial open records request on September 26, 2017, I spoke with the Captain of Internal Affairs who is responsible for video/ audio surveillance of the institution. Captain Williams informed me that he had searched for the videos requested and that there were none in existence that would be applicable to Mrs. Crawford's request. I spoke with Captain Williams again on October 19, 2017 when I received the appeal notice, and was informed again after another search that no records exist in reference to Mrs. Crawford's request.
Concerning "activity logs, " I spoke with medical unit administrative assistant Lisa Robinson on October 19, 2017 and asked if the medical unit keeps any kind of activity log on the inmates within their care. Mrs. Robinson informed me that there are no "activity logs" kept on the inmates.
I do not have access to inmate medical records, therefore I referred Mrs. Crawford to the medical records custodian.
Any other responsive records that were located were provided to Mrs. Crawford.
Mr. Mattingly further clarifies:
KSR searched for video and audio records applicable to Marc Crawford but found no records. For [activity logs] , without further details or clarification, KSR staff states that there is no "activity log" that is created and cannot provide a non-existent record. [T]he Department of Corrections [DOC] does not create or possess records related to medical intake and medical staff schedules; however, if these records exist, they can be requested from the medical contractor for the department, Correct Care Solutions, LLC, 3001 Hwy 146, LaGrange, KY 40032. [A]ny medical or medication records applicable to Marc Crawford would be maintained by the medical records custodian. [Otherwise,] applicable documents in KSR's possession were provided to Mrs. Crawford. Any other records would be either maintained by the medical records custodian or the ambulance service used to transport Marc Crawford.
In a follow-up letter received by this office on November 1, 2017, Ms. Crawford alleges that she "was told [she] would not be given some of the information." We note that there is nothing in the record on appeal to confirm that statement, and we cannot conclude that KSR possessed undisclosed records on the basis of "mere assertions." 09-ORD-129.
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.
We note that Record Series No. M0052, Surveillance Video/ Audio Recordings, on the General Schedule for State Agencies , gives the following retention instructions: "Destroy or re-use after seven (7) days. If any investigation, litigation, or open records request involving these recordings is taking place or is pending, the recordings should be maintained until all investigative or legal activity is completed." In the absence of an allegation that any such activity existed prior to September 18, 2017, it is entirely reasonable that such recordings from three months earlier should no longer exist. 11-ORD-014.
As to "activity logs, " there is nothing to contradict KSR's representation that no such record is generated; if Ms. Crawford meant to refer to some other type of record, we note that KSR made efforts to obtain a clarification from her. Finally, as to the medical records, KSR has advised Ms. Crawford of the proper custodian of those records, and the Open Records Act requires no more than this. 2 Since we have no basis for concluding that any records were withheld, we can find no violation of the Act.
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.
Footnotes
Footnotes
1 Presumably this was in reference to KRS 197.025(7), which grants the Department of Corrections five days, excluding weekends and legal holidays, to respond to an open records request.
2 If 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." KRS 61.872(4).