Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
On January 23, 2018, Kurt J. Lowe ("Appellant"), a prison inmate, submitted the first of three (3) open records requests with the Northpoint Training Center ("NTC"). Appellant submitted the three requests seeking the disclosure of financial payment records called cash payment orders ("CPO"). 1 In his first open records request, Appellant asked to inspect "[a]ll 'paid' and 'unpaid' CPO's (cash pay orders) signed by Kurt J. Lowe # 284794 from 9/21/17 to 1/22/18 for the purpose of paying for: (a) Legal Mail; (b) Open Records Act requests for copies of them (public records) ." On January 25, 2018, Appellant submitted two more open records requests. Appellant provided identical descriptions for the requested documents, seeking, "[e]ach and every (all) CPO's (cash pay orders) that were attached to Open Records Act Requests that were tendered to the NTC Open Records Coordinator, both paid and unpaid, between the dates of 9/21/17 and 1/24/18." However, Appellant requested to inspect records with one request, and requested copies of the records with the other.
On January 29, 2018, NTC issued responses to the three (3) open records requests. NTC provided Appellant a date, time, and location upon which he could inspect all of the existing records. Regarding the request for copies, NTC informed Appellant that "[s]ince you have asked to inspect the records, you may identify the records for which you want copies[.]" NTC further explained that "[i]f you want to obtain copies of any of the records you inspect, you need to identify which specific records and provide a CPO for payment."
NTC denied access to the unpaid CPO's for open records requests and legal mail. The facility explained that, "Offender Information Services Office destroys any unused CPOs for open records requests if there are insufficient funds to pay the costs or if records are not provided for the request since no charges are made to the inmate's account." Regarding the CPO's for legal mail, NTC explained that those are processed and paid when submitted and "[u]npaid CPOs for legal mail do not exist and cannot be provided."
Appellant elected to appeal the disposition of the three requests in one consolidated appeal. The appeal was marked as "Received" in the institutional mail system on February 14 and stamped "Processed Legal Mail" on February 15, 2018. This Office received Appellant's appeal on February 23, 2018. Appellant raises five (5) arguments in his appeal. Regarding the CPO's, Appellant states that "KDOC/NTC employees failed to provide 'all' of the CPO's attached to each and every Open Records Act Request I filed and appealed[.]" Appellant also raises allegations related to the actions of NTC staff, including: NTC employees have generally committed fraud or criminal acts; NTC employees concealed or destroying evidence in the form of public records; NTC employees conceal and destroy public records to skew the findings of this Office; and that NTC employees should be found in violation of the Open Records Act and referred for criminal investigation.
On March 7, 2018, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. Ms. Barker first argues that the appeal is time barred by operation of KRS 197.025(3). 2 She argues that Appellant's twenty (20) day filing deadline was February 19, 2018 and the deadline had lapsed because he "did not file his appeal with the Attorney General until after the deadline. " In the alternative, Ms. Barker argues that NTC does not retain unpaid CPOs and "[a] public agency cannot afford a requester access to a record that it does not have or which does not exist." Regarding the destruction of the unpaid CPOs, Ms. Barker cites states Series M0002 on the General Schedule for State Agencies 3 and states that the unpaid CPOs are "in the nature of routine correspondence that could be discarded when no longer needed." Ms. Barker addresses Appellant's remaining arguments by stating that those issues are not appropriate for an open records appeal.
We first address the timeliness of the appeal, and find that Appellant timely submitted his appeal. NTC correctly points out that KRS 197.025(3) required Appellant to appeal the denial of his request within twenty (20) days. However, this Office interprets the statute to require that an appeal "have been mailed or sent no later than" the due date. See 17-ORD-175 (finding an appeal untimely because it was not mailed within twenty days of the denial). NTC is correct that the appropriate documents were due on or before February 19, 2018, but Appellant met the deadline when his appeal was marked as received in the institutional mail system on February 14, 2018. Since the appeal was mailed before the expiration of the deadline, the appeal is timely.
Regarding access to the existing records, NTC complied with the Open Records Act. It was not a violation of the Act to require Appellant to first review the paid CPOs and then request copies after the fact. Pursuant to KRS 61.872(3), 4 a person may have access to records by one of two means: on-site inspection during the regular office hours of the public agency, or by receipt of the records from the agency through the mail. 03-ORD-067, p.4. We have found that KRS 61.872(3) authorizes a public agency to require an open records applicant who resides in the county in which the requested records are located to require the applicant to inspect the records before providing the applicant with copies. 17-ORD-010; 14-ORD-144. Appellant made his request to inspect records at the institution in which he is confined, and there is no indication that he was prohibited from moving freely about the facility at that time of the request. Therefore, we find that NTC provided Appellant with access to the existing CPOs in a manner that complied with the requirements of the Open Records Act.
We further find that NTC did not violate the Open Records Act when it destroyed the unpaid CPO's pursuant to Series M0002 on the General Schedule for State Agencies . Series M0002 is the correct retention schedule to apply to CPOs. Appellant provides an instructive description of CPOs in his appeal stating:
KDOC inmates cannot possess cash, checks, credit cards, or any other method of pay for goods and services while incarcerated in prison, but the KDOC solved this problem with Cash Pay Orders or "CPO's". CPO's are issued for a number of things, and are paid when an inmate's cash account is adequate to pay the expense. And when there is not adequate to pay the expense, KDOC/NIC employees stamp the CPO in green ink "insufficient funds" and return a copy to the inmate.
This description demonstrates that unpaid CPOs only reflect an inmate's cash account balance at that particular moment. As an inmate's cash account balance changes over time, a CPO marked unpaid would lose any significance. Series M0002 states that routine correspondence "documents day-today activities, including but not limited to: customer/constituent service, procurement, or internal communication." Therefore, we find that NTC correctly regarded unpaid CPOs as "routine correspondence" covered within the scope of Series M0002.
NTC provided an adequate explanation for the destruction of the unpaid CPOs. Series M0002 allows routine correspondence to be maintained for up to two years but "nothing requires that it be retained beyond the time that it is needed." (General Schedule [Record Series] M0002). See 18-ORD-007; 17-ORD-087; 17-ORD-048. When records are destroyed in accordance with an applicable records retention schedule, there is no violation. See 15-ORD-144; 14-ORD-065. NTC cannot produce nonexistent records for inspection or copying. See Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. However, in order to satisfy the burden of proof imposed by KRS 61.880(2)(c), 5 public agencies must offer some explanation for the nonexistence of the records and the authority under which the records were destroyed. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. NTC's response informed Appellant that unpaid CPO's for open records requests and legal mail are routinely destroyed. The appeal response correctly cited Series M0002 as the applicable retention schedule. Therefore, we find that NTC complied with the requirements of the Open Records Act.
With regard to Appellant's allegations that NTC employees have generally committed fraud, criminal acts, and concealed or destroyed evidence, this Office declines to address those issues. Such issues are outside of the scope of our review and cannot be considered in the context of an open records appeal under KRS 61.880(2)(a). These issues are not appropriate for an open records appeal.
A party aggrieved by this decision may appeal it 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.
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