Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections' actions relative to the open records request of Melanie Nehmzow violated the Open Records Act.
By letter and facsimile dated April 25, 2002, Ms. Nehmzow requested to inspect and copy the following records:
1. Copies of the Department of Corrections policy and procedures for community correctional facilities, treatment facilities and halfway house programs.
2. A list of all community correction facilities, halfway houses and treatment facilities that are run by private companies and or corporations who are under contract with the Department of Corrections for the Commonwealth of Kentucky whether the company is a for profit or not for profit corporation.
3. Copies of the contracts with the above companies and or corporations and or facilities.
4. Complaints against the above mentioned corporations and or companies and or facilities.
5. Reports of investigations on the above mentioned facilities and or corporations and or companies.
6. Copies of any reports sent to the Bureau of Prisons on the above mentioned facilities and or companies and or corporations.
7. Copies of any Commissioner or Deputy Commissioner Reports concerning any of the above mentioned facilities and or companies and or corporations or opinions relating specifically to the types of work an inmate may perform for these entities; may perform for others and what types of work an inmate may not perform for anyone.
Ms. Nehmzow further stated in her request that she agreed "to pay for the cost of any records which I decide to have copied, after I have inspected the requested documents."
By letter dated May 2, 2002, William R. Lundy, Jr., Office of General Counsel, responded to Ms. Nehmzow's request on behalf of the Department. In his response, Mr. Lundy advised:
I am in receipt of and have reviewed your open records request. (copy attached) .
With regard to request number one (1), this exact request was made by you on April 23, 2002, and was responded to by the Department of Corrections by letter dated April 26, 2002 (copy attached) . The policies that you requested then and now are found in the Kentucky Administrative Regulations (501 KAR 6:020) They may be reviewed in the Legislative Research Commission located on the bottom floor of the State Capitol Annex in Room 39. For hours of inspection you can call Susan Wunderlich or her assistant, at 502-564-8100, to arrange a time.
With regard to request number two (2) and three (3), because it requests a "list", it is a request for "information", and not one to inspect reasonably identified records. Furthermore, the request is objectionable because it fails to provide any reasonable identity of the corporations and/or companies referred to. The Open Records Act only requires the Department of Corrections (DOC) to respond to requests to inspect "reasonably identified" records, and it does not require the production of copies of records. Accordingly, the Department of Corrections (DOC) will not provide the requested list. However, you may contact David Johnson, 502-564-4726, at the Health and Human Services Building in Frankfort, Kentucky about the location of such records and a time to inspect the same.
With regard to request number four (4), it is objectionable because it fails to reasonably identify the identity of the corporations and/or companies referred to, or the nature of the complaints referred to. The Open Records Act only requires the Department of Corrections (DOC) to respond to request to inspect "reasonably identified" records. Accordingly, the request is denied.
With regard to requests number five (5), six (6) and seven (7), they are objectionable for the same reason that number four (4) is objectionable. Accordingly, the requests are denied.
By letter dated May 8, 2002, Stephen P. Durham, General Counsel, further responded to Ms. Nehmzow's letter and facsimile request, dated April 25, 2002. In his response, Mr. Durham stated:
In your fax, you indicate that you would like to inspect and copy certain policies and procedures of the Department, list of community correction facilities, copies of contracts of such facilities, and complaints against the above-mentioned community facilities. The policies and procedures, list of community facilities, copies of contracts the Department has with community correction facilities shall be available for your inspection and copying by contacting Maribeth Schmitt by calling 502/564-7290 and making an appointment with her. Your request to view and copy complaints against the community correction facilities and reports of investigations of the above-mentioned facilities, copies of reports sent to the Bureau of Prisons and copies of any reports to the Commissioner or Deputy Commissioner concerning these facilities is too broad and if you were to narrow it to a more specific timeframe, it would be possible for us to determine whether we have the types of reports you are looking for and whether or not they can be released to you. However, any grievance shall not be made available unless KRS 197.023(1) has been complied with.
We are asked to determine whether the actions of the Department in its responses to Ms. Nehmzow's request violated the Open Records Act. For the reasons that follow, we conclude that the Department's responses were in substantial compliance with and did not constitute a violation of the Act.
To begin, as noted in the response of the Department's General Counsel, the agency has agreed to permit Ms. Nehmzow to inspect and copy the records requested in requests numbered one, two, and three, i.e., "the policies and procedures, list of community facilities, copies of contracts the Department has with community correction facilities."
40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since the Department has agreed to make these records available for Ms. Nehmzow's inspection, the appeal as to these records is moot and no opinion will be rendered as to them. 40 KAR 1:030, Section 6.
Moreover, the Department has not denied Ms. Nehmzow's request for requests numbered four, five, six, and seven. It has requested that she be more specific in order that they can identify the precise documents she is requesting.
In 94-ORD-12, this office articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records." KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
As noted, the Department did not deny Ms. Nehmzow's request. She was advised that if she could provide "a more specific timeframe, it would be possible for us to determine whether we have the types of reports you are looking for and whether or not they can be released to you." As a precondition to inspection, Ms. Nehmzow must identify with "reasonable particularity" those documents that she wishes to review, in order that the agency might identify with precision the records she is seeking. OAG 91-58.
Moreover, since the Department has agreed to permit Ms. Nehmzow to inspect records relating to community correction facilities, she may be able to narrow the scope of her request by describing with reasonable particularity the complaints, reports and the time frame for those records she wants to inspect. Accordingly, Ms. Nehmzow, if she has not already done so, may wish to resubmit her request in this regard.
As required by KRS 61.880(1), if the Department denies, in whole or in part, inspection of any record, the denial should 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 from inspection.
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.
Melanie Nehmzow1626 Bluehorse AvenueLouisville, KY 40206
Stephen P. DurhamDepartment of Corrections Office of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400
William R. LundyDepartment of Corrections Office of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400