Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this open records appeal is whether the Kentucky Parole Board violated KRS 61.870 to 61.884 in denying Rodney Duff's request for a copy of the written or taped record of the hearing at which the November 16, 1995, decision granting him parole was rescinded. On December 17, 1996, Helen Howard-Hughes, the chairperson of the Parole Board, denied Mr. Duff's request, asserting:
The Board is under no obligation to provide you with any information concerning the decision to rescind the parole recommendation. Parole decisions are subject to being rescinded any time prior to one being released and signing the Parole Certificate.
For the reasons which follow, we find that although the Board's original response was deficient, it properly denied Mr. Duff's request.
Upon receipt of this office's notification of open records appeal, the Parole Board and Corrections Cabinet amended Ms. Howard-Hughes's original response. On behalf of the Board, Corrections Cabinet staff attorney Tamela Biggs explained that the written record of Mr. Duff's hearing before the Parole Board consists of a "blue sheet" which indicates the reasons for his serve-out. Mr. Duff received a copy of the "blue sheet" at that hearing. The Board no longer has the audio-tapes of the January, 1996, hearing because it retains copies of the tapes for six months only. Ms. Biggs confirmed that pursuant to 501 KAR 1:030(5), a parole recommendation can be rescinded at any time prior to the inmate's release, and information received in contemplation of rescission is made confidential by KRS 439.510.
With respect to Ms. Howard-Hughes's original response, we find that the Parole Board violated KRS 61.880(1). That statute, which contains guidelines for agency response to an open records request, provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In denying Mr. Duff's request, Ms. Howard-Hughes failed to cite KRS 439.510, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and to provide any explanation for the Board's refusal to honor his request for the written or taped record of his hearing. Several months elapsed before Mr. Duff initiated this appeal, and in the interim a new chairperson was appointed to the Board. Upon receipt of notification of Mr. Duff's appeal, the current chairperson, Linda Frank, attempted to remedy the deficiencies in Ms. Howard-Hughes's earlier response by thoroughly investigating Mr. Duff's history before the Parole Board, and forwarding all relevant information to Ms. Biggs. Ms. Biggs then furnished this office with an explanation of the Board's position. Based on that explanation, we find that the Board's position is consistent with the Open Records Act.
Mr. Duff received a copy of the written record of his hearing before the Parole Board on the date of the hearing. Accordingly, the Board did not furnish him with another copy. The Attorney General has recognized that a duplicative request for the same records can be denied unless the requester "can explain the necessity of reproducing the same records which have already been released to [the requester] , such as loss or destruction of the records." 95-ORD-105, p. 7; 97-ORD-153.
The Board cannot furnish Mr. Duff with a copy of the taped record of the hearing inasmuch as it no longer exists. 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. In 97-ORD-143, we addressed the question whether the Parole Board properly denied an inmate access to the tape of a parole hearing on this basis. At page 3 of that decision, we observed:
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. 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.
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.
We believe that 97-ORD-143 is controlling. The Parole Board properly denied Mr. Duff's request for the taped record of his January, 1996, hearing before the Board.
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.