Request By:
R. Allen McCartney, Esq.
Assistant County Attorney
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Keith Phillips has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his requests to inspect various records pertaining to and involving the Jefferson County Corrections Department.
In his request dated May 3, 1988, Mr. Phillips sought to inspect records pertaining to food products purchased by Szabo Food Service, Inc. for consumption in the correctional facility. In his request dated May 18, 1988, Mr. Phillips asked to inspect the policy and procedure manual for the correctional facility and the contract pertaining to the utilizing of the services of Szabo, Inc. of Chicago, Illinois. He also requested to inspect meal evaluation forms and commissary records relative to inmate benefits.
You replied to Mr. Phillips' first request in a letter dated May 13, 1988, and advised him in part as follows:
". . . Pursuant to your request of May 3, 1988, please be advised that we are unable to comply with said request because all purchases made by Szabo Food Services, Inc. are not subject to the Kentucky Open Records Law since Szabo is an independent contractor of the county and said records are not in our possession."
You replied to Mr. Phillips' second request in a letter dated May 27, 1988. You advised him that a copy of the Jefferson County Corrections Department's Policy and Procedure Manual, minus the chapter dealing with security, is available for inmate inspection in the inmate library located adjacent to the gym on the fifth floor. In regard to the contract with Szabo, Inc. of Chicago, you said that a copy of the contract would be placed in the inmate library adjacent to the Policy and Procedure Manual.
Concerning the requests pertaining to inspection of the meal evaluation forms and the commissary records you advised Mr. Phillips as follows:
"With respect to meal evaluation forms submitted by supervisors from January 1988 to present, please be advised that I have been informed that the meal evaluation forms are in the possession of Szabo, Inc., and are not forms of the Jefferson County Corrections Department.
"With respect to your fourth request concerning the commissary records for inmate benefits to include monies available, records of all items bought for inmate benefit from December 1987 to present, I am declining this request based on KRS 61.872 (5) in that this application places an unreasonable burden upon the Jefferson County Corrections Department for producing voluminous records and the Department believes or has reason to believe that this request is intended to disrupt the essential functions of this public agency. "
In his letter of appeal to this office Mr. Phillips maintains that he is entitled to inspect records pertaining to food products purchased by Szabo, Inc. He cites KRS 61.872 to the effect that he should be given the address of the organization that has custody of those public records.
Mr. Phillips further states that the Policy and Procedure Manual has not been placed in the inmate library and that a copy of the contract between the county and Szabo concerning food service has not been made available. He also maintains that he should be permitted to examine the meal evaluation forms. Finally, he states that the inmate commissary records are not voluminous in number and should be made available for inspection.
The undersigned Assistant Attorney General talked with you by telephone on June 14, 1988. You advised that a copy of the Policy and Procedure Manual (minus the chapter dealing with security) should be located in the inmate library. You said you would contact the appropriate personnel at the Corrections Department to see that a copy of the manual is placed in the inmate library. You further stated that you would send Mr. Phillips a copy of the contract executed between the county and Szabo, Inc., concerning food service at the correctional facility.
In regard to the documents pertaining to the commissary accounts you said that they are, in fact, voluminous in number. The correctional facility has a large number of inmates and numerous transactions occur daily. The records are located in another building and the correctional facility does not have the personnel or funds to package and send the documents to an inmate or to take an inmate to the building where the records are located.
OPINION OF THE ATTORNEY GENERAL
In view of your responses to the requesting party's concerns relative to inspection of the Policy and Procedure Manual and the contract between Szabo, Inc. and the county, this opinion does not have to deal with those matters. We, therefore, need only deal with the three remaining requests.
Two of those requests pertain to documents which the correctional facility does not have, those being copies of purchase orders of Szabo, Inc. and meal evaluation forms in the possession of Szabo, Inc. Obviously a public agency cannot furnish access to documents which it does not have and a request for documents which a public agency does not have is moot. See OAG 83-111, copy enclosed.
While the records pertaining to the expenditure of funds by the county and the correctional facility are available for inspection (such as the contractual document between the governmental entity and Szabo, Inc.) generally, the business records of a private firm are not subject to public inspection. Not only does the county not have the documents pertaining to purchase orders and meal evaluations, but they are in the possession of a private firm and would not be subject to public inspection unless, for example, the contract so provided. See OAG 80-454, copy enclosed.
In denying that part of the request for access to records pertaining to commissary records, you cited KRS 61.872(5). That section deals with a request which places an unreasonable burden on the agency or where repeated requests are intended to disrupt other essential functions of the public agency.
In OAG 82-629, copy enclosed, we dealt with an inmate's request for documents and whether such material had to be mailed since the requesting party was confined in the reformatory. We noted that it is not incumbent upon a public agency to provide documents to inmates who are unable to go to the office where the records are kept because of their confinement. This office cited KRS 61.874 and concluded in that opinion as follows:
"In summary, it is our opinion that a sheriff's office is not required to send a copy of records which have not been inspected by the requester even though the requester is an inmate who is not able to personally inspect the records because of legal confinement. "
Thus, the public agency is required to make public records available, at the place where the records are normally kept, during regular business hours. The public agency is not required to mail or send uninspected documents, particularly where voluminous records are involved, and the fact that the requesting party cannot visit the office and inspect the records is not the public agency's problem. See OAG 79-546, copy enclosed, at pages 1-2.
It is, therefore, the opinion of the Attorney General that the public agency's denial of a request to inspect documents which are not in its possession and which constitute records of a private organization is justified. Furthermore, the public agency's refusal to furnish documents which have not been inspected at the normal depository for such materials is justified even though the requesting party is an inmate who is not able to inspect the records because of his confinement.
As required by statute, a copy of this opinion is being mailed to the requesting party, Mr. Keith Phillips, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.