Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver Assistant Attorney General
Open Records Decision
This is an appeal from the Kentucky Parole Board's responses to two open records requests submitted by Danny R. Matthews, an inmate at Northpoint Training Center. Because the Board's responses to Mr. Matthew's requests raise common questions of law, they are consolidated for purposes of appeal.
On July 5, 1997, Mr. Matthews requested copies of transcripts of his April 3, 1996, and February 8, 1996, parole hearings. In a letter dated June 10, 1997, Brenda J. Hatchell, an administrative specialist for the Parole Board, responded to Mr. Matthews's request advising him that the Board does not provide transcripts of parole hearings. She further advised him that he could "request a copy of the taped proceeding by sending a prison check or money order for $ 2.78 . . . to cover the cost of the tape and postage." In an undated letter, Mr. Matthew's requested the tapes, enclosing in his request letter a money order for $ 5.56. Having received no response to this request, Mr. Matthews initiated this appeal on August 25, 1997.
On September 2, 1997, Linda F. Frank, chair of the Parole Board, notified Mr. Matthews that the Board "retains this category of hearing tapes for six (6) months." For this reason, the Board could not grant his request. Ms. Frank returned his money order, and forwarded a copy of his letter to the Offender Records Division of the Corrections Cabinet so that the Division could provide him with the other records he requested.
In a subsequent letter, Mr. Matthews challenged the Board's assertion that the tapes are only retained for six months. He maintained that this practice deprives him of his rights under the Open Records Act as well as his "constitutional right to a judicial remedy." Additionally, he noted, the practice may contravene applicable provisions of Chapter 171 relating to records retention and recovery and destruction of records.
We are asked to determine if the Kentucky Parole Board violated the Open Records Act in responding to Mr. Matthew's requests. For the reasons which follow, we find that although the Board improperly failed to respond to Mr. Matthews's follow-up request for copies of the tapes, which was accompanied by a money order per Ms. Hatchell's directions, the Board properly advised him that it could not honor his request since the retention period for the records had expired.
Although Ms. Hatchell promptly responded to Mr. Matthews's July 5 request, neither she nor any other employee of the Board responded to his second request until after he initiated this appeal. Because of the chronological discrepancies in this appeal, and Mr. Matthews's failure to date his letters, we are reluctant to assign error. However, we urge the Board to review KRS 61.880(1) to insure that timely responses are issued to all open records requests, including those submitted by the same individual.
Turning to the substantive issue in this appeal, we find that the Parole Board properly refused to honor Mr. Matthews's requests for tapes of his parole hearings on the grounds that those tapes are only retained for six months. In response to this office's request for additional documentation, Ms. Hatchell provided us with a copy of the Records Retention Schedule established by the State Archives and Records Commission for the Kentucky Parole Board pursuant to KRS 171.530 (copy enclosed). That document indicates that the Board must retain parole hearing tapes for six months after which they may be destroyed, erased, or reused. Because Mr. Matthews's hearings were conducted more than a year before his requests were made, the tapes of those hearings are no longer in existence. As this office has so often observed, a public agency cannot afford a requester access to records which do not exist. See, for example, 94-ORD-140.
The Kentucky Open Records Act was amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.40 to 171.740, dealing with the management of public records." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the records no longer exist, we do not believe that this appeal warrants additional inquiries. Because the Parole Board destroys these records after six months, they no longer exist and cannot be released. The question presented in this appeal is factual, and not legal, in nature.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.