Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Kentucky State Penitentiary's denial of James Savage's request for a copy of all grievances he had filed against the Medical Department at the Penitentiary.
Gail McQuigg, Custodian of Records, Kentucky State Penitentiary, denied Mr. Savage's request, stating:
The records you are requesting cannot be located with the information you have provided. Grievances are not filed under inmate names but by year and the grievance numbers. As KRS 61.872(6) implies when such request would create an unreasonable burden on the provider, additional information can be required or the request denied. You will need to specify the year and month of the grievance (s) needed and preferably the number.
In his letter of appeal, Mr. Savage indicated that since the initial denial of his request, he had resubmitted his request and asked for a copy of all grievances he had filed against medical since his incarceration in 1994.
As authorized by KRS 61.880(2) and 41 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs states:
It is the Department's contention that KRS 61.872(6) is appropriate authority for denial of the request. The Penitentiary files inmate grievances by date and grievance number, not by inmate name. If the inmate does not provide the exact date and grievance number, staff must physically go through each and every grievance in order to locate a specific one. According to Ms. McQuigg, approximately 800 to 1000 grievances are filed per year. Deputy Warden Haeberlin stated that inmate Savage has subsequently "narrowed" his request to copies of grievances since 1994. Ms McQuigg, who is responsible for scheduling and participating in the inmate grievance committees, would have to take a minimum of two days out of her schedule to physically go through the 4,000 to 5,000 grievances to locate any filed against the Medical Department by inmate Savage. Since Ms. McQuigg is an integral part of the grievance committee procedure, hearings could not be scheduled for the days necessary to conduct the review; thereby placing the committee behind in its consideration of other inmate's grievances. I was also informed that once a grievance has gone through the Warden's review, the inmate is given the original of his grievance (with the number) to keep for his records.
Due to the lack of necessary information from the inmate, the time away from Ms. McQuigg's normal duties and the potential for delay in the hearing of other inmate's grievances, the Department maintains that KRS 61.872(6) is applicable. An unreasonable burden would be placed upon the staff and Penitentiary to attempt to locate grievances when the inmate has failed to provide key information necessary to find same. While attempting to satisfy the request, other duties and committee hearings would be preempted to the detriment of the grievance committee and other inmates.
The issue in this appeal is whether the Penitentiary properly denied Mr. Savage's request on the basis of KRS 61.872(6). That statute provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In her response to the letter of appeal, Ms. Biggs explains that the Penitentiary does not maintain its grievance files by inmate name, as requested by Mr. Savage, but by date and grievance number. She documents the difficulty associated with attempting to manually retrieve the requested records from among 4,000 to 5,000 records and the resulting disruption of the essential functions of the staff and grievance committee procedures. In so doing, she sustains the Penitentiary's burden of proving, by clear and convincing evidence, that Mr. Savage's request places an unreasonable burden on the agency. We therefore affirm the Penitentiary's denial of Mr. Savage's request, under authority of KRS 61.872(6).
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.