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 Mason County Detention Center violated the Open Records Act in the disposition of former inmate Jody Moore's January 4, 2010, request for his account number and records of all funds deposited to his inmate account between June 17 and December 17, 2008. For the reasons that follow, we find that the facility's response did not substantively violate the Act but raises some concerns about the Detention Center's records management practices.
The original response to Mr. Moore's request came from Angie Clary on January 12, 2010, 1 and stated: "You will have to contact Swanson. We are not with that company anymore and no longer have access to the information requested." Mr. Moore initiated this appeal on January 19, 2010, and pointed out that he had no contact information for "Swanson." Mason County Attorney John F. Estill submitted a response dated January 29, 2010, in which he confirmed that Mr. Moore had been an inmate in the facility from June 17 to December 17, 2008, and stated the following:
[T]he Mason County Jailer contracted with Swanson Services Corporation, of 1133 Penn Street, Denver, Colorado 80203, to manage and administer all inmate accounts. Swanson Services Corporation provided all hardware and software for the system, and the contract provided that all of the information entered into the system belonged to Swanson, and was the proprietary information thereof. The Mason County Jailer terminated the contract with Swanson on or about December 331 [ sic ], 2008, and Swanson removed its system and all data stored thereon, except as was necessary to transfer the data to the new provider to continue to manage and account for inmate moneys on the date of termination of the contract. The undersigned was advised by Swanson as part of the investigation of this Appeal that the data sought by Jody Moore does indeed exist, but a request needs to be made to Swanson and there will be research charges to provide the information.
In this case, we can find no violation of the Open Records Act itself. 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. The Detention Center's basis for its statement, however, gives cause for concern about its records management practices.
In 09-ORD-020 (copy attached), which we hereby adopt as the basis of our present decision, we stated at page 5 that "[a] public agency cannot, by means of a contract with a private company, deprive records of their public character." According to the Jailer Schedule for records retention (incorporated by reference in 725 KAR 1:061, Section 2(1)(dd)), inmate account records (including deposit receipts; Series No. L2686 and L2687) are to be retained by the jail indefinitely and destroyed "2 years after release of inmate and audit."
Local government agencies are required to comply with the Jailer Schedule pursuant to 725 KAR 1:061, Section 1(3)(c)(8). Mr. Moore was released less than two years ago. Since the Mason County Detention Center has apparently failed to maintain its access to these records in a manner that would allow compliance with the Schedule, 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.
Jody Moore, # 168871John F. Estill, Esq.Gerald Curtis, Jailer
Footnotes
Footnotes
1 Since it is unclear from the record when the Mason County Detention Center received Mr. Moore's request, we cannot determine whether this response was timely.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -