Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kenton County Probation and Parole Office violated the Kentucky Open Records Act in its disposition of a request by Johnny Penn, an inmate at Eastern Kentucky Correctional Complex, for copies of the following public records:
. Time credit I had on probation, showing the time on probation I had without any violation until [] [my probation] was revoked on August 12, 2003;
. Letter [that] you said you sent to my address, 6554 Nicholas St., Florence, Kentucky 41042 on [] 6/6/03 [as] stated in your sworn affidavit . . . ;
. Letter you sent to me telling me [that] I was [supposed] to go to a substance abuse evaluation [on 9/23/02, 11/18/02 and 1/21/03];
. Letter you sent to the Substance Abuse Evaluation Center [where] I was to attend, letting them know [that] I [would] be co[ming] for an evaluation by your office on the days [that] I failed to complete [the evaluations and the address of the Center];
. Login sheet, where I sign[ed] my name in to see you on 4/14/03 at the probation office, like you said in court and on your affidavit; and
. Daily log sheet where you sign[ed] out to go to my home for two home visit[s] [that] you conducted the same day of 6/13/03 as stated in your affidavit . . .
Although Kenton County Probation and Parole committed a procedural violation of the Open Records Act, Mr. Penn has since received copies of the existing requested records thereby rendering any issues relating to those records moot as explained below. By affirmatively indicating that the referenced letters and specified log sheets do not exist, Kenton County Probation and Parole has fulfilled its obligation under the Open Records Act as to those records, albeit belatedly.
On February 4, 2004, 1 Mr. Penn directed his written request to Kenton County Probation and Parole Officer Bill Menefee. Having received no response, Mr. Penn initiated this appeal on February 11, 2004. In his letter of appeal, 2 Mr. Penn alleges that Kenton County Probation and Parole has violated KRS 61.880(1), KRS 61.872(2), KRS 61.872(5), KRS 61.872(3) , KRS 61.884 "or any other unlisted provision of the Open Records Act. "
Upon receiving notification of Mr. Penn's appeal, Emily Dennis, Staff Attorney for the Justice and Public Safety Cabinet, Office of Legal Services, responded on behalf of Kenton County Probation and Parole. According to Ms. Dennis, Officer Menefee acknowledged receiving Mr. Penn's requests when she inquired but indicated that he "was advised not to respond" to the requests. In response, Ms. Dennis correctly advised Officer Menefee that failure to respond to an open records request constitutes "a violation of the procedural requirement of KRS 197.025(7)" which provides that ". . . [u]pon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released." In "an attempt to prevent future open records appeals based on the failure of probation and parole officers in the Kenton County office to respond" to such requests, Ms. Dennis also "explained this procedural requirement" to Officer Menefee's supervisor, Betty Flynn. Addressing the substantive aspect of Mr. Penn's appeal, Ms. Dennis observes:
With respect to the records requested from Officer Menefee by Mr. Penn, items requested by him that are not otherwise exempt from disclosure include the documentation of custody time credit, which is a public record contained in the record of criminal action taken against Mr. Penn in Case no. 02-CR-00018 referenced in the Court's Order Revoking Probation and Sentence of Imprisonment for Johnny Penn, Jr. Also, Mr. Penn is entitled to a copy of the 6/6/03 letter from Officer Menefee to Mr. Penn. Copies of both items are enclosed for your reference and also enclosed with the copy of this letter to Mr. Penn in response to his appeal. Had this request been handled in compliance with the Kentucky Open Records Act, Kenton County Probation & Parole could have required Mr. Penn to pre-pay for copies of documents and postage prior to receipt, pursuant to KRS 61.874(3) and 501 KAR 6:020, Corrections Policy & Procedure 6.1. Under the current circumstances, the documents will be provided to Mr. Penn free of charge.
With respect to the remaining items requested by Mr. Penn, including the alleged letters from Officer Menefee to Mr. Penn informing him he was supposed to go to a substance abuse evaluation, letter to the Substance Abuse Evaluation Center, log in sheet and daily log sheet, these items do not exist. The Office of [The] Attorney General has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Also, as recognized by your office, an agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. I have also discussed this affirmative duty with Officer Menefee. The Office of Legal Services endeavors to provide Dept. of Corrections employees with open records training on an annual basis to prevent procedural errors such as this, but as you are no doubt aware, law is a practice and not perfect.
In short, Ms. Dennis is correct on all counts. 3 KRS 197.025(7) applies to correctional facilities, "KRS 61.880(1) to the contrary notwithstanding, . . ." In addressing the procedural requirements of the Open Records Act as applied to correctional facilities, this office has recognized that the General Assembly substantially amended KRS 197.025 during the 1998 legislative session. 99-ORD-102, p. 2. Among the amendments to KRS 197.025 enacted by the General Assembly was this specific provision extending the three day deadline for agency response to an open records request found in the residual statute codified at KRS 61.880(1), 4 to five days for the Department of Corrections and state correctional facilities such as the Kentucky State Penitentiary. Id. "KRS 61.880(1) is a general [statutory provision] that only applies where there is no other applicable statutory deadline for agency response" whereas KRS 197.025(7) is a specific statutory provision establishing the deadline by which the DOC and facilities such as the KSP must respond to open records requests. Id. Where two statutes address the same subject, "the specific shall prevail over the general." City of Bowling Green v. Board of Education of Bowling Green, Ky., 443 S.W.2d 243, 247 (1969). Accordingly, KRS 197.025(7) applies here, and the failure of Kenton County Probation and Parole to respond within the designated time period constitutes a procedural violation of the Open Records Act.
Turning to the substantive issues presented by this appeal, our analysis begins with those records already released to Mr. Penn. Pursuant to 40 KAR 1:030, Section 6: "If 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." See 03-ORD-087. If access to the public records that the requester seeks to inspect or copy is initially denied and then subsequently granted, the propriety of the initial denial becomes a moot issue. See OAG 91-140. Consistent with the foregoing authorities, we conclude that any issues relative to the "Order Revoking Probation and Sentence of Imprisonment," the "Documentation [of] Custody Time Credit" referenced therein, or the letter from Officer Menefee to Mr. Penn dated June 6, 2003, are now moot. In light of this determination, we must decline to address the merits of any issues related to those records.
According to Ms. Dennis, the requested records still at issue do not exist. Because the inability of Kenton County Probation and Parole to produce these records "due to their apparent nonexistence is tantamount to a partial denial" of Mr. Penn's request, it was incumbent on the agency to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 00-ORD-83; 97-ORD-16; 96-ORD-164; OAG 91-101; OAG 86-38. It stands to reason that a public agency cannot afford a requester access to records that it does not have or which do not exist. 00-ORD-83, p. 6, citing 99-ORD-108. An agency discharges its duty under the Open Records Act by affirmatively so indicating as correctly observed by Ms. Dennis. 03-ORD-205, p. 3, citing 99-ORD-98. Although there may be occasions when the Attorney General requests that an agency substantiate its denial based on the nonexistence of requested records by demonstrating any efforts made to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, 5 we do not believe that additional inquiry is warranted on the current facts. Because Kenton County Probation and Parole "cannot produce that which it does not have" and has now satisfied its duty to affirmatively indicate as much to Mr. Penn, we find no violation of the Open Records Act in this regard. 99-ORD-108, p. 3.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 Also attached to Mr. Penn's appeal is a copy of correspondence dated January 3, 2004, which Mr. Penn requested that Officer Menefee consider as "a formal request for a copy of the time credit I had on probation, . . ." Although it is unclear from the record before us whether the statutory time period of five business days had actually elapsed before Mr. Penn initiated this appeal from the implicit denial of his February 4th request, Officer Menefee concedes that he did not intend to respond and, further, that he failed to respond to Mr. Penn's initial request for the same reason.
2 Although Mr. Penn's letter is dated February 11, 2004, it was received by this office on February 16, 2004.
3 Having said this, we remind Kenton County Probation and Parole that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. In denying future open records requests, Kenton County Probation and Parole should be guided by these principles.
4 In relevant part,KRS 61.880(1) 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 this authority, and it shall constitute final agency action.
5 In relevant part,KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.