Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act in responding to Chris Hawkins' open records request. For reasons stated herein, this office cannot find a violation of the Open Records Act where a discrepancy exists between the records produced and records expected to be produced.
On March 13, 2019, Appellant submitted a Request for Inspection of Records form to KSP seeking multiple records, only one of which is at issue here. In relevant part, he requested a copy of disciplinary appeals for # KSP-2018-01975 and # KSP-2018-02075. KSP timely responded on March 22, 2019, granting Appellant's request for the requested disciplinary appeals. In its response, KSP inadvertently stated that one copy of "disciplinary report # KSP-2018-01975 and disciplinary report # KSP-2018-01975" was provided and that appeals for the "two disciplinary reports" were "identical." Appellant initiated this appeal on March 27, 2019, pointing out that KSP had written "disciplinary report # KSP-2018-01975 and disciplinary report # KSP-2018-01975" instead of disciplinary report # KSP-2018-01975 and disciplinary report # KSP-2018-02075. KSP responded, stating that listing # KSP-2018-01975 twice was a typo and the response should have read disciplinary report # KSP-2018-01975 and disciplinary report # KSP-2018-02075. Otherwise, the appeals were in fact identical and a copy had been provided to Appellant in its response to his open records request.
Appellant asserts KSP has not provided all records responsive to his request. KSP's response to this office advised that it has provided all responsive records. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2 (citing OAG 89-81, p. 3).
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
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 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.