Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections ("DOC") violated the Open Records Act in the disposition of Gerald McKinney's November 8, 2017, request for a "copy of the Verification of Incarceration issued by Angel Hasselback, Jefferson County Jail (LMDC) 02-18-2013, which [verifies] that Gerald McKinney, DOB: 11/21/75[, # 1420040] was incarcerated in the Jefferson County Jail on the charge(s) of Escape from 10/23/98 to 01/04/2000; AND [the DOC's] documentation indicating McKinney was credited with said time on his sentence." By letter dated November 27, 2017, Mr. McKinney alleged that DOC had cashed his check but had not sent any of the responsive documents to him. Upon receiving notification of Mr. McKinney's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of DOC. Ms. Barker first advised that DOC's Offender Information Services Branch ("OIS") reviewed its relevant logs and there is no record of Mr. McKinney's request being received.
OIS Branch Manager Briney J. King verified that DOC did not receive Mr. McKinney's November 8, 2017, request in her December 7, 2017, memorandum to Ms. Barker, a copy of which Ms. Barker attached to her appeal response. Ms. King advised that OIS made that determination following its review of "the internal log that tracks letters from inmates, [Kentucky Offender Management System ("KOMS")], and the Open Records Request Log. Three requests were received from Mr. McKinney and responded to by mail or a copy placed in his kiosk account." Ms. King further explained that DOC already provided Mr. McKinney with documents responsive to his November 7, 2017, request in response to a previous request that culminated in Open Records Appeal, Log No. 201700470. The records consisted of a letter from a Probation and Parole ("P & P") Office dated November 29, 2017, and the verifying documentation, including the Hasselback verification.
Ms. Barker advised that responses by DOC to Log Nos. 201700470 and 201700492 were incorporated by reference in her December 8, 2017, appeal response. Those appeals involve requests for what appear to be different records, DOC advised; however, "both the response to the CPP 17.4 form by Probation and Parole (P & P) staff and the response to the open records request" included the records being sought in the subject request. Ms. Barker advised that said records have been provided to Mr. McKinney by both the P & P Office and the DOC OIS in response to requests by Mr. McKinney. Relying upon prior decisions by this office, Ms. Barker correctly observed that DOC is not required to "provide duplicate copies of records previously provided without an explanation of the necessity for additional copies to be provided." Our independent review of the record in Log Nos. 201700470 and 201700492 validated the agency's position.
This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204. As in the these decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. McKinney's November 8, 2017, request for this office to resolve conclusively the related factual dispute. This office has no reason to question Mr. McKinney's position; however, the record is equally lacking in terms of any basis to question the veracity of DOC or conclusively refute its position. The memorandum of Ms. King certainly lends credibility to DOC's position. Absent irrefutable proof that DOC actually received Mr. McKinney's November 8 request, this office is unable to determine that DOC violated the Act from a procedural standpoint in failing to issue a written response within five business days per KRS 197.025(7). However, even assuming, for the sake of argument, that DOC did receive the request, existing legal authority validates the position of DOC regarding the merits of Mr. McKinney's appeal.
The Attorney General has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 05-ORD-198. Mr. McKinney has not offered any such justification; accordingly, DOC properly declined to satisfy his request. "Here, as in our earlier decisions, unless Mr. [McKinney] can 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, we can see no reason why [DOC] must satisfy the same request a second time. 95-ORD-47." 05-ORD-198, p. 2; 13-ORD-055; 17-ORD-065. Based upon the foregoing, this office has no basis upon which to find that DOC violated the Act procedurally or substantively.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.