Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Green River Correctional Complex ("GRCC") violated the Kentucky Open Records Act in its disposition of the request of Western Kentucky Correctional Complex inmate Ricky Fulcher for a copy of an inventory sheet relating to a package he received while incarcerated at GRCC and canteen records relating to his purchases at GRCC. We conclude that the actions of GRCC were in accordance with the Act.
Mr. Fulcher made a written request dated September 14, 2009, stating as follows:
I'm requesting a copy of How much my Samsung TV costed [ sic ] and date I was there around end of 02 and a few month[s] in 03 Thank you.
Mr. Fulcher's request was received September 24, 2009. GRCC's response came from Records Custodian Vanessa Dortch on September 28, 2009, stating in pertinent part as follows:
The document you have requested, a purchase receipt for a TV, is no longer on file with the Department of Corrections. Files of this nature are destroyed after two years, per KDLA standards.
Overlapping in time with this first request was a second request from Mr. Fulcher dated September 20, 2009, in which he stated:
I'm Requesting a Copy of inventory sheet from my Home package I received at Green River. Also what day and Date I Bought and cost of my TV and copy of all canteen I Bought. or anything I ordered at green River 02-03 Thank you.
This request was also received on September 24, 2009, and Vanessa Dortch replied in relevant part on September 28, 2009:
The documents you have requested, an inventory sheet for a home package, date and cost of a purchased TV and a list of all canteen or orders received while housed at GRCC, are no longer on file with the Department of Corrections. Files of this nature are destroyed after two years, per KDLA standards.
On October 13, 2009, this office received from Mr. Fulcher a joint appeal from the disposition of these two requests. Mr. Fulcher argues that the destruction of the records was improper, or did not occur, because "inmate Record[s] Are To Be Kept By the Ag[en]cy that generated them for twenty years." Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, responded on behalf of GRCC on October 19, 2009. Regarding the canteen records, he states as follows:
The Open Records Act requires bodies subject to its provisions to maintain records in accordance with the State Archives and Records Act, KRS 171.410 et seq. KRS 61.8715. The State Archives and Records Act sets forth statutory criteria and delegates further decision-making authority to the Kentucky Department of Libraries and Archives ("KDLA"). See KRS 171.420; KRS 171.450. The KDLA incorporates its records retention schedules by reference via 725 KAR 1:061. These schedules are available for inspection at the KDLA office, or via the Internet. The relevant retention schedules, those for the Department of Corrections, are located at http://www.kdla.ky.gov/recmanagement/schedules/kycorrections.pdf. This document currently provides for a retention period of three (3) years for inmate canteen records, record series 02967. Records Retention Schedule, Justice and Public Safety Cabinet, Department of Corrections (last revised September 10, 2009). In any conceivable construction of the facts surrounding this request, Mr. Fulcher's canteen receipt for his television from 2002 or 2003 would have long since been destroyed pursuant to applicable statutes and regulations.
In supplemental correspondence dated November 3, 2009, Mr. Milby addresses the property inventory requested by Mr. Fulcher:
The KDLA Retention Schedules for the Department of Corrections do not include a category for inmate property inventories. The closest analogy is to receipts for property or money, but this does not accurately describe the records at issue. As the property records in question detail items which are in the possession of an inmate, not the Department, they are not receipts, but rather are records to track what property is lawfully in the possession of an inmate.
As these records are not currently subject to any retention schedule, they are destroyed after a period of two (2) years by the individual institution. The records are kept as part of the institution's property room file, separately from the inmate's institutional or central file.
Accordingly, the Department does not possess the record requested by Mr. Fulcher. Although the description is vague, any property records from the period Mr. Fulcher was at Green River Correctional Complex would date back to June 2003 at the latest, as that was the last time period during which he was incarcerated at GRCC. As such, they would have been destroyed several years prior to Mr. Fulcher's request. An exhaustive search confirms that the record in question does not exist, and therefore cannot be provided to Mr. Fulcher by the Department.
Under the provisions cited by Mr. Milby, the canteen receipts relating to Mr. Fulcher's time at GRCC were properly destroyed pursuant to the records retention schedule. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
In support of his argument that all inmate records must be kept for twenty years, Mr. Fulcher cites 06-ORD-109. That decision is not on point, as it was addressed specifically to Record Series No. 04065, the "Inmate Medical File," which the Records Retention Schedule for the Department of Corrections explicitly requires to be kept for twenty years. None of the records requested by Mr. Fulcher would be part of his medical file.
As regards the inmate property inventory, the fact that these records were destroyed does not constitute a violation of the Open Records Act per se. It is a matter of some concern, however, that these documents are destroyed after two years even though they do not appear on the Department's records retention schedule.
In its 1994 amendments to the Kentucky Open Records Act, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records." KRS 61.8715. GRCC's practice of destroying non-scheduled records raises records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 proceedings.
Ricky Fulcher # 162001Jonathan S. Milby, Esq.Vanessa Dortch