Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated, or subverted the intent of the Kentucky Open Records Act in the disposition of Raymond Clark's request for "proof of employment from 2-1-02 to 11-1-02 and from 1-1-07 to 1-1-08." Insofar as the KSR initially failed to comply with KRS 61.872(4), its response was procedurally deficient; however, the KSR cannot produce for inspection or copying nonexistent records. Having advised Mr. Clark on appeal that no such records exist after conducting a thorough search, provided Mr. Clark with copies of responsive state pay records, the "closest equivalent" that can be offered to an inmate, and offered a detailed and credible explanation for the lack of additional documentation, the KSR ultimately discharged its obligations under the Open Records Act.
In requesting "proof of employment" for the specified time frames, Mr. Clark explained that he was "trying to obtain MGT [Meritorious Good Time], 95 days to be exact." Mr. Clark "was denied these days due to (OJT)" but "was working." An unidentified individual responded to Mr. Clark's request but merely indicated that he would "need to contact the Business office at each institution" at which he was employed without further explanation. By undated letter, Mr. Clark subsequently initiated this appeal, noting that his Classification and Treatment Officer had shown the information to him on the computer, and that he completed the money transfer authorization for payment on February 27, 2008, but received a copy of his request dated February 3, 2008, and the authorization back in the mail on March 12, 2008.
Upon receiving notification of Mr. Clark's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of the KSR, initially requesting additional time in which to "obtain information regarding the documentation that Mr. Clark allegedly inspected, for which he claims he should receive a copy." By letter dated March 31, 2008, Ms. Dennis acknowledged "there is no question but that the KSR's response was incomplete. . . . First, it is impossible to determine if the institution complied with the timing requirements of the Open Records Act because the response is both undated and unsigned." In addition, Ms. Dennis correctly asserted that it was incumbent on the Records Office to "either (1) obtain the information from the KSR responsive to Mr. Clark's request; or (2) forward the request to the KSR Business Office so that the business office could ascertain whether Mr. Clark worked during the period he requested and was housed at the KSR." Because there is no "proof of employment" reflected in the Kentucky Offender Management System (KOMS) for the dates in question, it is "unclear what electronic record Mr. Clark alleges to have been shown but not have been allowed to receive as a copy." According to Ms. Dennis, there is a "list of Program Recommendations; however, this is not 'proof of employment.'" A copy of the "Program Recommendations" for Mr. Clark is attached to Ms. Dennis' response for verification. "In fact, state pay stubs for inmate labor are managed in the Kentucky Inmate Management Systems (KIMS), a separate database that cannot be accessed by Offender Information Services Specialists or Classification and Treatment Officers." As further explained by Ms. Dennis:
Pursuant to the State Agency Records Retention Schedule for the Department of Corrections, Series 03018, Prisoner Payroll Records are to be maintained by the agency for three (3) years and destroyed after audit. . . . In addition, [pursuant to] Series 05542, an inmate's account file is to be maintained by the agency for five (5) years, then destroyed after audit. . . . Therefore, to the extent that Mr. Clark requested, on March 06, 2008, "proof of employment" from 2-1-02 to 11-1-02, these records may no longer exist. I have asked Janice Stanley of the KSR Business Office to verify this contention, as the institutional business offices maintain state payroll records and inmate account records.
With respect to Mr. Clark's request for "proof of employment" for calendar year 2007, it should be noted at the outset that Roederer Correctional Complex received Mr. Clark as a returned parole violator on 12/26/06. On 3/05/07, Mr. Clark was transferred to the Blackburn Correctional Complex, where he was housed until 07/06/2007. On 07/06/2007, Mr. Clark was transferred to the Northpoint Training Center, where he spent one week. Thereafter, on 07/13/07, Mr. Clark was transferred to the Kentucky State Reformatory, where he has been since that date [as evidenced by the attached exhibit]. Having spoken with Ms. Stanley at the KSR Business Office, I have verified that Mr. Clark did not have an assigned job from 07/13/07-01/01/08. In addition, Mr. Clark has no job assignment for the one-week period that he was housed at Northpoint Training Center.
In conclusion, Ms. Dennis clarified that "inmate state pay records" are the "closest equivalent to 'proof of employment' that the KY DOC can offer an inmate. Technically, inmates are not employees of the KY DOC; however, they may receive work assignments."
Upon receipt of a response from the DOC Central Office staff regarding Mr. Clark's job assignment status while housed at RCC and BCC, as well as her inquiry "as to whose responsibility (whether institutional or central) it is to maintain inmate pay records," Ms. Dennis supplemented her response by letter dated April 2, 2008. Reiterating that KSR's response to Mr. Clark was incomplete, "as the records custodian failed to sign and date the response and failed to forward that portion of the request that dealt with KRS business/fiscal office records to the KSR fiscal officer," Ms. Dennis further acknowledged that it was incumbent on the custodian "to provide the requester with the name and address where the records were located if in fact the records were not maintained or required to be maintained in the Kentucky Offender Management System (KOMS)." Citing KRS 61.872(4), Ms. Dennis correctly observes this "is a fundamental requirement under the Kentucky Open Records Act. "
Also reiterating that state pay stubs for inmate labor are maintained in the KIMS, a separate database that cannot be accessed by Offender Information Services Specialists or Classification and Treatment Officers, Ms. Dennis explained that such records are "maintained at each institution where an inmate is housed during his period of incarceration and do not follow the inmate as a record in KOMS." Accordingly, a proper response to Mr. Clark "would have disclosed to him the records maintained by the KSR Business Office, since he is currently housed at the KSR, and directed him by name and address to other institutions where he was housed during the period requested." That being said, Ms. Dennis advises that "KSR State Payroll records show that Mr. Clark received state pay for the months of February, March, May, June, July, and August 2002. Mr. Clark was paroled on November 14, 2002 and did not receive state pay for the months of January, September, October, or November of 2002." Ms. Stanley also reported to Ms. Dennis that Mr. Clark "did not receive state pay for the months of July 01-Deember 31, 2008." A copy of the State Pay Audit Trail for each of the specified months is attached to Ms. Dennis' response. In addition, Ms. Dennis explains:
Since the KSR failed to provide Mr. Clark with adequate information for him to write the custodian of records at the facilities where he was housed in 2007, I made these contacts for him in connection with this appeal. As previously reported to your office, the Roederer Correctional Complex received Mr. Clark as a returned parole violator on 12/26/06, Roederer Fiscal Office Manager Pat Kinser reports that Mr. Clark did not work, however, during his period of incarceration at Roederer between 12/26/06 through 03/05/2007. On 03/05/2007, Mr. Clark was transferred to the Blackburn Correctional Complex, where he was housed until 07/06/2007. While at Blackburn, Mr. Clark worked during the months of March, April, May, June and July 2007, as indicated by the state pay audit trail records attached. . . . As previously indicated, on 07/06/2007, Mr. Clark was transferred to the Northpoint Training Center, where he spent one week and was thereafter, on 07/13/2007, [] transferred to the Kentucky State Reformatory, where he has been since that date. Having spoken with Ms. Stanley at the KSR Business Office, I have verified that Mr. Clark did not have an assigned job from 07/13/2007-01/0108. In addition, Mr. Clark had no job assignment for the one-week period that he was housed at the Northpoint Training Center.
In conclusion, Ms. Dennis reiterates that each institution's fiscal office maintains inmate state pay records for the period of time during which the inmate is housed at the institution, "which is the closest equivalent to 'proof of employment' that the DY DOC can offer an inmate. " Thus, a "proper and complete response from the KSR would have provided Mr. Clark with his state pay records from the KSR and informed him, in clear terms, where he would need to make his requests (including not only location but also address) to receive other state pay records." Because the insufficient response provided by the KSR "was not made in bad faith," but instead reflects the ongoing transition in the records department, and she has now advised the supervisor of the requirements under the Act, Ms. Dennis believes that issues presented by this appeal "will be addressed more appropriately in the future."
In our view, the analysis contained at pp. 6-9 of 07-ORD-023, a copy of which is attached hereto and incorporated by reference, is equally controlling on the facts presented. Although the KSR initially failed to comply with KRS 61.872(4) , the agency has acknowledged this error on appeal and efforts have been made to prevent such errors from occurring in the future; accordingly, this office will not belabor the issue. In sum, the record is devoid of evidence to refute the position of the KSR, as articulated by Ms. Dennis, or to suggest bad faith on the part of the KSR. To the contrary, Ms. Dennis' explanation for the lack of additional documentation is entirely credible. Having advised Mr. Clark that no "proof of employment" records exist, provided him with copies of state pay records (the only existing records which are responsive to his request), and offered a detailed and credible explanation for the lack of additional documentation, the KSR belatedly discharged its duty under the Open Records Act in responding to Mr. Clark's appeal.
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.