Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Parole Board violated the Open Records Act in the disposition of Danny Simmons' June 30, 2002 request for records identified as follows:
[1] Any and all videotapes, notes, photos and any other information used in making the decision in [Mr. Simmons'] parole hearing in 1991 and June 2003[;]
[2] . . .
[3] [T]he annual statistics on Victim Impact Statements and/or Victim Hearings, stating the percentage of inmates who are granted parole vs. the percentage who are denied parole in violent crimes when Victim Impact Statements and/or Victim Hearings were and were not utilized. 1
For the reasons that follow, we find that the Parole Board's response to Mr. Simmons' request was only partially consistent with the requirements of the Open Records Act, and constituted, to the extent of the deficiencies described below, a violation of the Act.
In a letter dated July 7, 2003, Administrative Law Judge Nancy L. Barber responded to Mr. Simmons' request. 2 She advised:
In response to your letter dated June 30, 2003 I can only address the section relating to requests for tapes of the parole hearings in 1991 and June 2003. Parole Hearings are not videotaped, they are however audiotaped. Tapes of the Parole Hearings are retained for 12 months so a recording from 1991 is not available. If you do desire an audiotape of your parole hearing from June 2003 you will need to submit a request providing the date and location of the hearing accompanied by a personal check or money order for $ 2.00 for each tape requested.
In closing, Judge Barber advised Mr. Simmons that she would "forward [his] letter on to the administrative assistance [sic] for the Chairman of the Parole Board to address other aspects of [his] letter." Having received no additional correspondence from the Parole Board, Mr. Simmons initiated this appeal on August 11, 2003, questioning the Board's failure to observe the requirement of timely written response relative to his remaining records request, the requirement of citation to the specific exception authorizing the withholding of the responsive record or records, and "the entire spirit and intent of the Open Records Act [based on the] refusal to respond."
We find that although the Parole Board issued a timely written response in which it properly disposed of one portion of Mr. Simmons' request, the Board's failure to respond to the remainder of his request constituted a violation of KRS 61.880(1). That statute 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.
Judge Barber's response to Mr. Simmons was incomplete insofar as it failed to address his request for "notes, photos, and other information used in making the decision" in his parole hearings, and his request for annual statistics on victim impact statement/and victim hearings utilized in parole decision making. It is unclear whether Judge Barber was acting as official custodian 3 of the Parole Board's records in responding to his request or merely furnishing him with the information readily available to her. In either case, her letter to Mr. Simmons was only partially dispositive of that request and the Parole Board erred in failing to fully respond. 4
KRS 439.300 enumerates the duties of the Kentucky Parole Board. Section (4) of that statute provides:
The board shall keep a record of its acts, an electronic record of its meetings, a written record of the votes of individual members, and the reasons for denying parole to inmates. These records shall be public records in accordance with KRS 61.870 to 61.884. The board shall notify each institution of its decisions relating to the persons who are or have been confined therein, and shall submit to the Governor a report with statistical and other data of its work at the close of each fiscal year.
This provision confirms the existence of records of parole hearings, in addition to audiotapes of those hearings, specifically referencing yearly statistical analyses of the Board's work. Certain of these records are statutorily deemed open records, including the written record of the votes of members and the reasons for denying parole. Mr. Simmons should be afforded access to these records upon receipt of reasonable copying and postage charges. KRS 61.872(3)(b). Although statistical analyses prepared by the Board pursuant to this provision are not statutorily deemed open records, KRS 61.878(2) states that no exemption to the Open Records Act "shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person." If statistics have been compiled that are responsive to Mr. Simmons' request, those statistics should also be released to him upon prepayment of reasonable copying and postage charges. If no responsive statistical analyses exist, the Board should immediately so advise Mr. Simmons in writing. Similarly, if the Board is unable to produce notes, photos, or "other information" responsive to his request because no such records exist, it should immediately so advise him. On this issue, the Attorney General has observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3, cited in 02-ORD-163, note 1.
It is, therefore, incumbent on the Parole Board to ascertain whether records exist that are responsive to the remainder of Mr. Simmons' request, to promptly advise Mr. Simmons of its findings, and to release to Mr. Simmons all existing records expressly deemed open records pursuant to KRS 439.330(4), as well as statistical information not descriptive of any readily identifiable person. If the Board elects to deny him access to other existing responsive records, it must articulate a basis for denying him access in terms of the requirements of the statutory exemptions upon which it relies. Continuing inaction is not an option.
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.
Danny Simmons, # 90856Green River Correctional ComplexP.O. Box 93001200 River RoadCentral City, KY 42330
Karen Quinn, General CounselKentucky Justice CabinetBush Building, 2nd Floor403 Wapping StreetFrankfort, KY 40601
Nancy L. BarberAdministrative Law JudgeKentucky Parole BoardP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 In addition, Mr. Simmons asked whether a victim hearing was held, and the victim notified, in his case. On appeal, he purposely omitted these questions, challenging the Board's disposition of requests one and three only.
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2 Mr. Simmons' request was clearly identified as a "KRS Chapter 61 Open Records Request" and addressed to "The Chairperson of the Kentucky Parole Board."
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3 KRS 61.870(5) defines the term "official custodian" as:
[T]he chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control.
This provision "assumes the appointment of an official custodian . . . who is responsible for the timely processing of open records requests." 00-ORD-226, p. 2; see also 94-ORD-86 and 96-ORD-185.
4 With reference to the cited provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 857 (1996).
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