Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in the disposition of an open records request originally directed to the Cabinet for Health and Family Services and forwarded by that agency to DOC, as a courtesy, upon a finding that it maintained no records responsive to the request that contained the information sought. For the reasons that follow, we find no error in DOC's disposition of that request.
In his July 26, 2005, request to Cabinet for Health and Family Services' Secretary James W. Holsinger, Mr. James Lang requested that the Cabinet "advise [him] of the existence and number of license (s) by Dentist [sic] practicing for the Department of Corrections and the license for the operation of a dental laboratory by the Department of Corrections . . . ." He explained that receipt of this information would enable him "to know the amount necessary to receive copies of these requested licenses. " In addition, Mr. Lang asked that the Cabinet "advise [him] of the amount necessary . . . to receive copies of any and all inspection reports from [the] Cabinet relating to the operation of any and all dental laboratory (s) by the [DOC] as well as the licenses for the dental assistants operating said dental laboratory (s) . . . ."
By letter dated July 28, 2005, Cabinet for Health and Family Services Assistant General Counsel John H. Walker notified Mr. Lang that the Cabinet "does not have any record of the number of dentists working for the Department of Corrections, nor does it regulate dental laboratories or dental assistants working in laboratories. " As a courtesy, Mr. Walker forwarded Mr. Lang's correspondence to the Commissioner of the Department of Corrections, expressing the view that the Department might "be able to tell [him] about the number of dentists and dental assistants employed and the number of dental laboratories operated by the Department of Corrections."
Our review of the record on appeal indicates that Mr. Walker's letter, and the attached correspondence from Mr. Lang, reached DOC on August 1, 2005, and was referred to DOC counsel shortly thereafter. On August 15, 2004, DOC counsel denied the request contained in Mr. Lang's forwarded correspondence, explaining that DOC was "not obligated to honor a request for information" and citing, in support, 02-ORD-88. Further, counsel advised that pursuant to KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 DOC was "not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains a specific reference to that individual."
By letter dated August 18, 2005, Mr. Lang notified this office that he had received DOC's August 15 response on August 17, extrapolating from these facts that "the Attorney General's Office has engaged in improper ex parte communication with the DOC's counsel regarding this ORR [sic] appeal." It was his contention that "DOC's sudden response . . . came about as a direct result of improper communication from [the OAG] prompted by the receipt of [his] appeal wherein [the OAG] advised DOC a response was necessary . . .[, and that the OAG] assisted DOC's counsel in the preparation of said response by advising or consulting with DOC counsel as to the reasons to be set forth in the sudden responses denial [sic]." 2 Notwithstanding his accusations that this office "has no honor or integrity," and that we are "in cahoots with [DOC] . . .," Mr. Lang requested that we "render an opinion on whether KRS 197.025 is unconstitutional as special or local legislation in violation of Ky. Const. Section 59."
In supplemental correspondence directed to this office following commencement of this appeal, DOC counsel responded to Mr. Lang's allegations. As a starting point, counsel emphasized that "Mr. Lang never addressed an open records request to the DOC," and that the request he submitted to the Cabinet, which was subsequently forwarded to DOC, "did not constitute a separate open records request which would trigger the five day response time as set forth in KRS 197.025(7)." It was DOC's position that "[t]he open records law does not contemplate one state agency forwarding an open records request to another state agency, nor does it require a state agency to respond to a request forwarded to the agency on behalf of a third party within a particular time frame." Further, counsel asserted, Mr. Lang purposefully elected not to submit a proper request to DOC as a subterfuge designed to afford him the opportunity to pursue his ultimate goal: to obtain an opinion on the constitutionality of KRS 197.025. At the risk of once again being characterized by Mr. Lang as DOC's "apologist," we fully concur with the agency's position and find no violation of the Open Records Act.
To begin, DOC is entirely correct in its view that a misdirected request that is forwarded to another agency need not be treated by the receiving agency as a proper open records request to the receiving agency. KRS 61.872(4) speaks directly to this issue. That statute provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Upon receipt of notification of the name and location of the official custodian of the agency's public records, it is incumbent on the applicant to submit his or her request to the custodial agency. An individual who elects to sit on this right by refusing to submit his request to the custodial agency cannot be heard to later complain that the agency was derelict in its failure to respond. Mr. Lang's position is meritless. 3
Turning to the substantive issues in this appeal, we affirm DOC's denial of Mr. Lang's request for the reasons advanced by that agency. In 99-ORD-71, this office reaffirmed the longstanding principle that "a public agency is not statutorily obligated to honor a request for information as opposed to a request for specifically described public records. " 99-ORD-71, p. 1 (enclosed) . We note that 99-ORD-71 did not involve DOC or an inmate, but instead involved the Transportation Cabinet and a private citizen, suggesting that inmates are not singled out for adverse treatment. Further, we note that the opinions cited at pages 2 and 3 of 99-ORD-71, in support of this proposition, date back to the earliest days of the Open Records Act 4 and do not involve DOC or inmates, confirming this fact. We will not unnecessarily lengthen this decision with an analysis of this nearly axiomatic rule of law. Whatever Mr. Lang's intended use of the requested information, his request was entitled to no greater deference than any other request for information.
Moreover, we find ample support in existing open records law for the denial of Mr. Lang's request on the basis of KRS 197.025(2). In 03-ORD-150 (enclosed) , this office analyzed the "net effect" of the 2002 amendment to KRS 197.025(2), noting that the amendment "further curtail[ed] the inmate's right of access to records maintained by the Department of Corrections and correctional facilities . . . ." 03-ORD-150, p. 2, citing 03-ORD-73; 03-ORD-74; and 03-ORD-003. KRS 197.025(2) thus provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
(Emphasis added.) Here, as in 03-ORD-150, we find that under no construction of KRS 197.025(2) can it be said that records documenting "the existence and number of license (s) by Dentist practicing for the Department of Corrections" and "the amount necessary . . . to receive copies of any and all inspection reports . . . relating to the operation of any and all dental laboratory (s) by the [DOC] as well as the licenses for the dental assistants . . ." contain a "specific reference" to Mr. Lang. As noted at page 4 of that decision, "[t]his is the statutory standard by which we assess the propriety of the agency's denial of an inmate's open records request on the basis of KRS 197.025(2), and under this standard [Mr. Lang's] claims fail."
Because this office is not empowered to "render an opinion on whether KRS 197.025 is unconstitutional" in a legally binding open records decision, we must decline Mr. Lang's request that we do so. We remind Mr. Lang, as we reminded him in 01-ORD-12, that "an open records appeal to the Attorney General is not an appropriate forum in which to challenge the constitutionality of a statute restricting inmate access to records." 01-ORD-12, p. 1. If he wishes to pursue this issue, he must seek other avenues for redress of his grievance.
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.
James Lang, # 089449Bell County Forestry CampRoute 2, Box 75Pineville, KY 40977
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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2 Mr. Lang is sadly mistaken in this regard. As evidenced by this office's August 23, 2005, response to his open records request, there is no correspondence from or to DOC, no telephone log reflecting calls from or to DOC, and no email from or to DOC, concerning his appeal and supporting his unfounded claim of ex parte communications. We refuse to dignify these baseless allegations with any additional response.
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3 In 05-ORD-241, this office analyzed the respective rights and duties of open records applicants and public agencies under KRS 61.872(4). A copy of that decision is attached hereto and incorporated by reference. The Cabinet's decision to forward Mr. Lang's request to DOC was, as DOC correctly observes, a courtesy and did not trigger any corresponding duty on the part of DOC. DOC's decision to respond to the forwarded request was, by the same token, a courtesy. We proceed with our analysis in the interest of expediting resolution of this matter.
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4 See, for example, OAG 76-375.
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