Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Department of Corrections relative to the requests of Anthony Mattingly for information and records related to his jail time credit violated the Open Records Act. For the reasons that follow, we conclude that the actions of the Department were in substantial compliance with the Act and did not constitute a violation.
In his letter of appeal, Mr. Mattingly indicated that the Probation and Parole Office had ignored two open records requests he had made regarding his jail time credit.
After receipt of the Notification to Agency of Receipt of Open Records Appeal and a copy of Mr. Mattingly's letter of appeal, Stephen P. Durham, Counsel for the Department, provided this office with a response to the issues raised in the appeal. In his response, Mr. Durham states:
The attached affidavit sets forth the reasons the Appellant did not receive the requested record. The recipient indicates the initial request was not deemed to be a request for a record. This is a good faith mistake. The recipient deemed it to be a request for information. A request for information would not be covered by the open records act. The affidavit indicates that the second request was not received. However, upon when this office faxed copies of the appeal to the recipient they answered the request on May 21, 2001. The answer and affidavit are attached.
Attached to Mr. Durham's letter was the May 21, 2001 response of Virginia Helbling, Ninth District Assistant Supervisor, Department of Corrections, to Mr. Mattingly. In her letter, Ms. Helbling advised:
As per your request for a "detailed copy of the 170 day jail credit", no such copy is available, however I can advise that the 170 ran from your arrest date on 12-1-99 until the Parole Violation Detainer was placed against you on 5-18-00. Upon reviewing this record it became apparent that Corrections may have omitted some Parole Violation time (between when that detainer was served and your actual return to the institution) from your record card and they were notified of this omission. It now appears that on 5-17-01 your record card was amended to add an additional 1 month and 12 days of parole violation time.
As to your request regarding the DVO on your PSI. First let me advise that this should have been brought to the court's attention when you reviewed the PSI prior to sentencing. Following sentencing, it is not our prerogative to change the PSI, however, we have forwarded the court the Amended Domestic Violence Order which you provided and it will be Judge Overstreet's decision as to whether the PSI will be altered. You will be notified of her decision.
Also attached to Mr. Durham's letter was an affidavit of Ms. Helbling, in which she states that Mr. Mattingly's request was perceived as a standard request for a recalculation of his custody credit and was so processed. She further states that they had no record of Mr. Mattingly's second request, dated April 27, 2001.
We are asked to determine whether the actions of the Department violated the Open Records Act. For the reasons that follow, we conclude the actions were in substantial compliance with the Act. In his first request, Mr. Mattingly stated:
I am writing to request a detailed copy of the 170 day jail time credit you advised the court to award me. The court did award the 170 days on 00CR00410. Offender Record has shorted me almost 2 months and I need to provide proof the 170 days was before May 18, 2000, which i[t] was.
I have also enclosed a order from oldham county court dated August 26, 1999. This order should help clear the D.V.O. that should not have been placed on the P.S.I.
Although this request was not identified as an open records request, it satisfied the requirements of KRS 61.872(2), relative to written application, insofar as it described the record to be inspected, and was signed by the applicant, with his name printed legibly thereon. In its response to the letter of appeal, the Department indicated that it found no record of Mr. Mattingly's second request, dated April 27, 2001. This office provided the Department with a copy of the April 27th request letter that Mr. Mattingly had included with his letter of appeal. The Department in its response provided to this office responded to the merits of both requests. In her affidavit, Ms. Helbling indicated that the initial request was perceived as a standard inmate request for recalculation of jail time custody credit and a review of his jail credit was made.
These circumstances support more a misunderstanding between the parties than an attempt to subvert the intent of the Open Records Act. Accordingly, we find that any procedural violation that may have been occasioned by the misunderstanding is mitigated by the Department's subsequent actions of advising him that no such copy of the document he requested existed and reviewing and amending his jail time credit. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Moreover, the statement in Mr. Mattingly's letter that the DVO should not have been placed on his PSI was not a request for records subject to the Open Records Act. The Department, in its response, did advise it was not its prerogative to change the PSI after sentencing and forwarded the Amended Domestic Violence Order to the sentencing court for its consideration. This, too, supports our conclusion that the Department's actions regarding Mr. Mattingly's requests was not an attempt to subvert the intent of the Open Records Act. We conclude that the actions of the Department in response to Mr. Mattingly's requests were in substantial compliance with and did not constitute a violation of the Act.
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.