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 Offender Information Services Branch of the Department of Corrections violated the Kentucky Open Records Act in denying the request of John G. Grant for "[a]ny recommendations from the Grayson Co. Commonwealths [sic] Attorneys [sic] Office or Judge Sam Monarch in reference to my co-defendants who were Larry and Crystal Brooks that receive [sic] parole between Dec. 2006 and March 2007." Although OIS initially cited the wrong statutory exception, any such records would not contain a specific reference to Mr. Grant; accordingly, OIS remedied this error in relying upon KRS 197.025(2) , incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as the basis for denying his request.
On a standard request form directed to "Records, KY Parole Board," on September 19, 2007, Mr. Grant submitted the aforementioned request. In a timely written response, Robert F. Belen, Administrative Specialist III, OIS, denied his request, advising "that in an offender record certain documents are exempt from disclosure [] [p]ursuant to KRS 61.878(1)(a) which in effect states that information of a personal nature [the disclosure of] which may constitute an unwarranted invasion of personal privacy shall not be open to public disclosure. " By letter dated September 24, 2007, Mr. Grant initiated this appeal from the denial of his request.
Upon receiving notification of Mr. Grant's appeal from this office, Emily Dennis, Staff Attorney, responded on behalf of OIS. As explained by Ms. Dennis:
To his credit, Mr. Grant correctly asserts that no personal privacy interest is at stake when a Commonwealth's Attorney or Judge writes a letter to the Parole Board relative to an individual's parole eligibility; however, assuming the records even exist in the first place, Mr. Grant incorrectly concludes that he is entitled to the requested records for his defense. State inmates are only entitled to receive records under the Open Records Act that contain a "specific reference" to the inmate making the request. Any letter to the Parole Board, whether for or against a grant of parole relative to a different inmate, would be exempt from disclosure to inmate Grant pursuant to KRS 197.025(2), which states that the Department of Corrections is 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. KRS 197.025(2) applies to [Mr. Grant's] request as an enactment of the General Assembly (See KRS 61.878(1)(l)).
In this case, I spoke with Mr. Belen following receipt of the appeal, who thoroughly checked both Central Office offender information files for Larry and Crystal Brooks. Mr. Belen confirmed for me that there are no records of letters from the Commonwealth's Attorney or Judge to the Parole Board relative to these individuals. I explained to Mr. Belen the fact that he had cited the wrong statute exempting disclosure, that the exemption under KRS 197.025(2) would have applied, and further advised him that KRS 61.878(1)(j) exempts from disclosure preliminary memoranda or recommendations that do not form the basis of final agency action.
In our view, 04-ORD-076 and 04-ORD-205 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
As consistently recognized by the Attorney General, KRS 197.025(2) expressly authorizes the DOC to deny any request by any inmate unless the record(s) contains a specific reference to that inmate. Because records of the kind at issue would not contain a specific reference to Mr. Grant (even assuming that same did exist and were in the custody of OIS), as required by KRS 197.025(2), Mr. Grant is not entitled to inspect or to receive a copy of any such records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Grant may believe that application of KRS 197.025(2) imposes upon him, Mr. Grant is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, OIS properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 1
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.
Footnotes
Footnotes
1 Because OIS has conceded the procedural error, this office will not belabor the point.
As long recognized by the Attorney General, a public agency cannot produce for inspection or copying records which do not exist; accordingly, OIS could have also properly denied access on that basis after Mr. Belen conducted a thorough search given the lack of evidence to the contrary. With regard to statutory obligations of a public agency when denying access due to nonexistence of the records, 07-ORD-023, pp. 6-9, is controlling.