Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Lee Adjustment Center violated the Kentucky Open Records Act in its disposition of Joseph L. Silverburg's request of September 20, 2004, to inspect or be provided with a copy of the "National Fire Protection Association 2000 and 2004 Codes concerning [the] fire sprinkler system." Because the requested records do not contain a "specific reference" to Mr. Silverburg, LAC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), in denying his request.
More specifically, Mr. Silverburg, an inmate at LAC, directed his request to Mr. Charles Nelson, LAC's Fire Safety Manager. In an undated letter received by this office on October 7, 2004, Mr. Silverburg appeals from the denial of his request. Upon receiving notification of Mr. Silverburg's appeal from this office, Corrections Corporation of America responded on behalf of LAC. To begin, CCA explains that Mr. Silverburg's request "was not received [by] the Records Management Officer" but instead was delivered to Mr. Nelson per Mr. Silverburg's direction. 1
Citing 03-ORD-091 and 03-ORD-071, CCA correctly observes that the NFPA Codes "clearly fall[] within the purview of KRS 197.025(2)" as those "books do not contain a specific reference to Mr. Silverburg." In lieu of providing Mr. Silverburg with a copy of the requested records, LAC therefore provided Mr. Silverburg with "the address of the book's publisher so that he could purchase the book himself." 2 In closing, CCA contends "there can be no violation of the Kentucky Open Records Act by an agency that has not received a request for public records." Since the LAC Records Management Office never received the request at issue, "there is no basis upon which to conclude that LAC violated [the Act] in this case." In short, CCA is correct on all counts.
In 04-ORD-205, a prior appeal involving these two parties, this office affirmed CCA's denial of Mr. Silverburg's request to inspect specified records on the basis of KRS 197.025(2). It is the decision of this office that the reasoning contained in 04-ORD-205, a copy of which is attached hereto and incorporated by reference, is equally applicable here. 3 Because the NFPA Codes from 2000 and 2004 do not contain a "specific reference" to Mr. Silverburg, LAC did not violate the Open Records Act in denying his request on the basis of KRS 197.025(2).
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.
Joseph L. Silverburg, # 151608Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Barbara EstesLee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Sherril GautreauxCCA10 Burton Hill Blvd.Nashville, TN 37215
Footnotes
Footnotes
1 Although Mr. Nelson should have forwarded such a request to the custodian of records at LAC assuming that Mr. Nelson ever received the request, the record on appeal does not contain sufficient information concerning the actual receipt and delivery of Mr. Silverburg's request upon which to base a determination that LAC violated the Open Records Act in failing to respond within five days in compliance with KRS 197.025(7). Accordingly, further analysis of this procedural issue is unwarranted.
2 As correctly observed by CCA, the remaining requests mistakenly attached to the notification of Mr. Silverburg's appeal were not directed to CCA. Rather, the two virtually identical requests to inspect or receive copies of "any and all executive orders from the Governor's Office of Kentucky granting the private law firm of Henry Watz Gardner Sellars & Gardner authority to represent the Commonwealth" in civil action No. 04-CI-00008, were directed to the Office of the Governor and the aforementioned firm. Therefore, LAC never received either request. Since the records were requested from another agency, CCA was not legally obligated to respond nor does CCA or LAC have any records which are responsive to this request.
3 04-ORD-205 is also controlling as to the factual discrepancy concerning the actual receipt and delivery of Mr. Silverburg's request.