Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Pike County Detention Center relative to the open record request of Paul Amburgey for copies of "records documenting mail received or posted by Paul Amburgey on or after January 31, 2005," violated the Open Records Act. Because the Detention Center has provided Mr. Amburgey with access to certain records he requested, we conclude the issue as to those records is moot and no decision will be rendered as to them. 40 KAR 1:030, Section 6. However, because the appeal raises possible records management issues, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
In its response, the Detention Center provided Mr. Amburgey with some records responsive to his request, but further advised that mail records for the first part of 2005 had been lost. Shortly after receipt of the response, Mr. Amburgey initiated the instant appeal.
After receipt of notification of the appeal, Captain Johnny Slusher, Pike County Detention Center, provided this office with a response to the issues raised in the appeal. In his response, he advised, in relevant part:
We were able to respond to most of Mr. Amburgey's request. Photocopies of the mail logs were sent to Mr. Amburgey except for the first part of the year 2005. The Pike County Detention Center was being renovated and a new section of the jail built from 2005 - 2006. During this time the mail log for the first part of the year 2005 was either lost or destroyed. We have made a search of the Pike County Detention Center for this log but have been unable to find it. So we are unable to respond to all of Mr. Amburgey's request.
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." 04-ORD-106. Since the Detention Center has provided Mr. Amburgey with some records responsive to his request, we conclude that the appeal as to access to those records is moot and no decision will be rendered as to them.
However, the Detention Center has an obligation relative to proper records management and retention. The fact that some of the requested records have been lost, misplaced, or destroyed suggests the presence of a management of records issue. KRS 61.8715 provides:
[T]o 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 . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. It is, however, for the Department for Libraries and Archives, and not the Attorney General, to assist the Detention Center in determining whether it is fully discharging its duty to manage and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Accordingly, pursuant to KRS 61.8715, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
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.