Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Lee Adjustment Center (LAC) relative to the open records requests of Joseph L. Silverburg violated the Open Records Act. For the reasons that follow, we are unable to resolve the factual issue as to whether LAC received Mr. Silverburg's request and suggest that he resubmit his request to the LAC's Records Custodian, if he has not already done so, in order that the LAC may respond to his request, as required by KRS 197.025(7).
In his February 15, 2005 letter of appeal to this office, along with attachments, Mr. Silverburg stated that the LAC had denied his requests to inspect "prison institutional grievances filed by the undersigned during the Month of October 2004" and "all memorandums issued after October 4, 2004 concerning inmate housing assignment to West dormitory at the Lee Adjustment Center" and "Institutional Memorandum(s) that determined 'N-Wing will house other inmates besides those inmates recently released from disciplinary segregation or that N-Wing will no longer be Enhanced Supervision Unit.'"
After receipt of Notification and a copy of the letter of appeal, Sherril Gautreaux, Assistant General Counsel, Operations, Corrections Corporation of America, by letter dated April 8, 2005, provided this office with a response to the issues raised in the appeal. In her response, Ms. Gautreaux advised that these requests were never received in the LAC Records Management Office. In support of this position, Ms. Gautreaux attached the affidavit of Booby Moore, Records Supervisor, LAC, in which he averred that he searched his file records for Mr. Silverburg's request and found no record of its receipt.
In his letter of appeal to this office, Mr. Silverburg argues that LAC denied his open records request. In its response, LAC states that it had never received the request and that Mr. Silverburg must submit his request to Bobby Moore, the LAC open records custodian, in compliance with the established procedure by which to request LAC records.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Silverburg's open records request. Accordingly, if he has not already done so, Mr. Silverburg may wish to resubmit his request, in accordance with established procedures, to Bobby Moore, the LAC open records custodian, so that the agency may properly respond to his request, as required by KRS 197.025(7).
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.
Joseph L. Silverburg, # 151608Lee Adjustment CenterP. O. Box 900Beattyville, KY 41311
Bobby MooreRecords Custodian Lee Adjustment CenterP. O. Box 900Beattyville, KY 41311
Sherril GautreauxAssistant General Counsel, OperationsCorrections Corporation of America10 Burton Hills BoulevardNashville, TN 37215
Emily DennisDept. of CorrectionsOffice of General Counsel2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400