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 Department of Corrections ("DOC") violated the Kentucky Open Records Act in its disposition of C. A. Preston's February 16, 2010, request for a copy of "[a]ny and all documents referring or pertaining to any subpoena, court order or other government request seeking access to telephone recordings of [inmate] Kevin R. Black, # 081258, during October and November, 2009, at Green River Correctional Complex." We conclude that the actions of GRCC were substantively in accordance with the Act.
On February 18, 2010, MaryAnn Sullivan in the DOC Commissioner's Office, to whom Ms. Preston had addressed her request, responded as follows:
I have received and reviewed your request to inspect all documents relating to the access of telephone recordings of Kevin R. Black 081258. We do not have these documents in my office. I have forwarded your request for information to the Green River Correctional Complex for a response. Please contact Teresa Shanklin if you have further questions regarding this matter.
The forwarded request was received at Green River Correctional Complex (GRCC) on February 22, 2010. GRCC's disposition, dated February 25, 2010, was written partly by Teresa Shanklin and partly by Vanessa Dortch:
[T]he documents you have requested do not exist. I am returning your personal check ? to you. Pursuant to KRS 61.872(5) which requires that immediate access be given to the applicant if the record is in active use, in storage, does not exist or cannot be located.
Ms. Preston initiated this appeal on March 18, 2010. 1
The DOC's response to this appeal, dated April 1, 2010, was submitted by Amy V. Barker, Assistant General Counsel. Ms. Barker explains that the responses from DOC and GRCC were delayed in reaching Ms. Preston because Ms. Preston's address on the request (a post office box) differed from the address on her enclosed check and the latter address was originally used in issuing the responses. The two responses were transmitted to Ms. Preston, one by facsimile and the other by mail, on the same days they were returned by the post office as undeliverable. Although the misrouting appears to have been a simple oversight, we note that Ms. Preston's request was written on an official form produced by the Finance and Administration Cabinet, and accordingly the mailing address appearing on that form should have been used as the reference.
Ms. Barker also acknowledges that pursuant to KRS 61.872(4) MaryAnn Sullivan, in her original response, should have notified Ms. Preston of the name and location of the records custodian for GRCC. In this instance, we consider the procedural violation to be somewhat mitigated by the fact that Ms. Sullivan forwarded the request to GRCC herself. Additionally, Ms. Barker states:
Ms. Sullivan learned in a phone conversation with Ms. Preston after sending the response letter that a staff person at the DOC Central Offices had information about the phone recordings. Counsel has spoken with the staff person and he informed her that he did not have a subpoena, court order or written government request for the phone recordings. The records requested by Ms. Preston were not received and cannot be provided. Ms. Sullivan did not [originally] seek the records from the staff person because it is not normal for these types of records to be located at the Central Offices or with this staff person.
We gather by negation that telephone recordings of GRCC inmates would normally be maintained only at GRCC, but for some reason these recordings, unbeknownst to Ms. Sullivan, had been in the possession of a DOC Central Offices staff person who had received some sort of request for them. We also infer that the request either did not come from the government or was not made in writing.
In accordance with that representation, and consistently with the responses on February 18 and February 25, Ms. Barker asserts that neither the DOC Commissioner's Office nor GRCC possessed any records responsive to Ms. Preston's request. 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.
The Kentucky Open Records Act was substantially amended in 1994. 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. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).
In correspondence received by this office on March 25, 2010, Ms. Preston purports to show through documentation that GRCC received a subpoena, court order, or written government request for Mr. Black's telephone recordings. She attaches a "Twentieth Supplemental Compliance with Discovery" dated December 2, 2009, in Breckinridge Circuit Court Case No. 09-CR-00020, which states that "[t]wo CD's containing copies of phone calls made by the defendant, Kevin Black, are delivered herewith to defense counsel." Also attached is a "Kentucky DOC Call Detail Report" bearing the date November 20, 2009, which shows data on telephone calls made by Mr. Black but contains no information about the content of those calls. Lastly, she provides a memorandum from Warden Randy White to Mr. Black dated December 29, 2009, which states that "Lt. Robert Henning and Sgt. Jason Kidd," who "are points of contact for any agency requesting inmate phone call recordings [,] state they have not received any open records request or subpoena for the recordings [and] further state GRCC did not relinquish the recordings in question."
None of these documents contradicts the DOC's position that neither the Commissioner's Office nor GRCC received a subpoena, court order, or written government request for the recordings. If the recordings were provided to prosecutors by a DOC Central Office employee pursuant to an oral request, and no documents were generated concerning that oral request, then there is no reason to conclude GRCC would have any documentation of the event. Likewise, if the Central Office employee, pursuant to a written request, provided the recordings to some private individual who then passed them on to prosecutors, there would be no record of any "government request."
In correspondence to this office on April 5, 2010, Ms. Preston argues that she is seeking to learn "what kind of document/request was utilized and by whom to get the recordings. The current issue is ? the method used to make the original request and DOC, thus far, has failed to provide that information." As noted in previous decisions of this office, requests for information are outside the scope of open records law and an agency is not obligated under the law to honor a request for information. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. Ms. Preston is free to submit a more broadly worded request if she believes a written request for the recordings was made by a private individual. For purposes of the present appeal, we conclude that the Department of Corrections did not substantively violate 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 proceedings.
C. A. PrestonAmy V. Barker, Esq.MaryAnn Sullivan
Footnotes
Footnotes
1 Apparently the arrival of this appeal in the Office of Legal Services, Justice and Public Safety Cabinet, with Ms. Preston's original request attached, led to a responsive letter dated March 24, 2010, from Staff Attorney Allison R. Brown. She provided Ms. Preston with copies of two December 2009 orders from the Breckinridge Circuit Court which were deemed to meet the description in her request. One order, dated December 9, 2009, in a criminal case concerning Kevin Ray Black, dealt with evidentiary privileges attaching to Mr. Black's phone calls and directed that "compact discs filed with the Court for in camera inspection shall be placed under seal by the circuit clerk subject only to inspection by court order by this Court or an appellate court." The other order, dated December 21, 2009, in a related case against Mark Wayne Thompson, directed that "Jeff Hulker, Department of Corrections, Law Enforcement Liaison, Corrections Program Administrator, shall immediately redact from the c.d. labeled Kevin Black calls, the November 2, 2009 7:47:11 telephone call. Five copies of the redacted c.d. shall then be sent by express mail to the Court." The March 24 letter from Allison R. Brown and its attachments are not mentioned in DOC's response to this appeal. (Ms. Brown's March 24 correspondence was provided to this office by Ms. Preston.) We infer from the circumstances that those documents were not in the possession of either the Commissioner's Office or GRCC. Since Ms. Brown was evidently responding from the Office of Legal Services as if to a new request, and did not send a copy to the Attorney General, we do not consider her March 24 letter to be within the scope of this appeal. Moreover, since those court orders were entered after prosecutors had turned over the recordings to Mr. Black in discovery, they do not address what Ms. Preston was seeking to learn; i.e., how the prosecutors obtained the recordings.