Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Hopkins County Probation and Parole Office violated the Kentucky Open Records Act in failing to respond upon receipt of Terrell Woosley's request for "Verification of time served and completion of half-way [sic] back program, for Terrell Woosley # 079976 who entered the program sometime in January of 1996." Upon receiving notification of Mr. Woosley's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of the Probation and Parole Office. According to Ms. Dennis, she contacted Kim Henagan, the District Supervisor for District Two, Division of Probation and Parole, who serves as the Open Records Coordinator for District Two and supervises the Hopkins County Office to which Mr. Woosley allegedly directed his request, and Ms. Henagan indicated her office never did receive the request. Attached to Ms. Dennis' response is a sworn affidavit from Ms. Henagan to that effect dated August 7, 2007. In addition, the request "was also [not] received by Lee VanHoose, Director of the Division of Probation and Parole, whose office is located in Frankfort, KY, since the request was never addressed to Ms. VanHoose in the first place."
Based on the foregoing, Ms. Dennis asserts that Mr. Woosley's appeal "is based on the unproven assertion that the alleged request was received by the Probation and Parole Office in Hopkins County." Rather, he "offers no proof that he actually mailed the request and Ms. Henagan attests that" neither she nor anyone at her office received the request. As correctly observed by Ms. Dennis, a public agency cannot respond to a request that was not received. "Since Mr. Woosley fails to show that his request was actually mailed and Ms. Henagan has no record of having received the alleged request," Mr. Woosley cannot demonstrate "that the Division of Probation and Parole failed to respond" in violation of the Act.
To the extent Mr. Woosley wishes to properly file a request for the records at issue, Ms. Dennis advises that "he will need to mail his request to Ms. Henagan, District Two Supervisor, in the Hopkinsville Office." In addition, he must file an "authorization to use inmate account form to pay for the record and associated postage, consistent with 501 6:020, Corrections Policy & Procedure (CPP), 6.1, Dept. of Corrections' policy regarding Open Records Law." A copy of that regulation, which validates her assertion, is attached to Ms. Dennis' response. According to Ms. Dennis, the record on appeal contains "insufficient information" for the Office of the Attorney General "to resolve the factual dispute concerning the actual delivery and receipt of the open records request allegedly made. See 05-ORD-013, 03-ORD-061."
In our view, 05-ORD-013 and 03-ORD-061 are controlling on this issue as well as the application of KRS 61.872(4); a copy of each decision is attached hereto and incorporated by reference. See 07-ORD-046; 05-ORD-264. As in the cited decisions, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of Mr. Woosley's request for this office to conclusively resolve the related factual discrepancy. Absent objective proof, this office finds no procedural violation by the Hopkins County Probation and Parole Office. In short, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statute. Having provided Mr. Woosley with contact information for the official custodian of the records at issue, in accordance with KRS 61.878(4), and clarified the necessary steps which must be followed in order to comply with CPP 6.1, the Hopkins County Probation and Parole Office has fully complied with relevant provisions of the Open Records Act.
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.
Terrell Woosley, # 079976Lelia "Lee" VanHoose, DirectorDivision of Probation & ParoleDepartment of CorrectionsP.O. Box 2400Frankfort, KY 40602-2400
Amy BarkerDeputy General CounselDepartment of CorrectionsOffice of Legal ServicesP.O. Box 2400Frankfort, KY 40602-2400
Emily DennisStaff AttorneyJustice & Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601