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 Kentucky Department of Corrections and Northpoint Training Center ("Northpoint") violated the Kentucky Open Records Act in its disposition of an open request from inmate Willie James Stewart. We conclude that they did not violate the Act.
Mr. Southard's request, dated August 12, 2013, and sent to Northpoint and the Department of Corrections Fiscal Office jointly, asked for inspection of the following:
One: All written receipts, of the Kentucky Department of Corrections, " Inmate Money Transfer Authorization Forms " written and signed by me and Approved by Northpoint Training Center Correctional Staff Member's signatures as described herein attached as Exhibit: A1 through A13 . (Offender/payee Account Doc # 093596 Offender Name Stewar[t] Willie)
Two: All " State Pay Receipts " from 2007 through Oct. 26, 2010.
Three: All written and Approved " Indigent Status ," at Northpoint Training Center.
Four: I want to Inspect Kentucky Department of Corrections, " Inmate Money Transfer Authorization Receipt " for copies useage [ sic ] of $ 200.00 with my printed name and signature as well as Northpoint Training Center Correctional Staff Member approving such copies on January 26, 2009.
(Emphasis in original.) Mr. Stewart appealed to the Attorney General when he had received no response by August 20, 2013. His appeals were received by this office on August 28, 2013. Because they concern the same subject matter and essentially the same parties, these appeals are consolidated.
On August 16, 2013, Mr. Stewart's request was received by the Department of Corrections. On August 19, 2013, Leah Beasley, Offender Information Services, replied by letter: "The records you have requested are not maintained in your Central Office file. You will need to request these documents from the Little Sandy Correctional Complex. " The Department acknowledges that Ms. Beasley inadvertently directed Mr. Stewart to the wrong correctional facility, as he had been incarcerated at Northpoint Training Center during the relevant time period. It is evident from the record, however, that Mr. Stewart knew Northpoint was the proper facility to contact.
According to a response to this appeal by Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, dated September 11, 2013, "Northpoint Training Center did not receive the open records request until it was received with the appeal notice from the A[ttorney] G[eneral]'s office" on August 29, 2013. On September 6, 2013, Kelly Tyree, Offender Information Services, replied to Mr. Stewart:
It should be noted that a thorough inspection of Northpoint Training Center's Open Records Request Log indicates the request you submitted was never received at this institution. When a request is received in the Offender Information Department at Northpoint Training Center, it is date stamped and logged for tracking purposes. Your request was not present on the log.
Regarding the actual records you've requested, pursuant to KRS 197.025(7) , the Department of Corrections has 5 business days from the date it receives an open records request to respond to the request. This time may be extended, however, if the records are in use, storage or not otherwise available. Given the multiple years involved and the number of records you request, additional time is needed to retrieve all of the records. A response will be sent to this request on or before Monday, September 16, 2013 to explain the cost of the records you are requesting. A money authorization was not received with the appeal as indicated in the request and only the institution at which you are incarcerated can access funds in your inmate account.
In response to your request number four concerning an "Inmate Money Transfer Authorization Receipt for copies". It is not clear what you are seeking. NTC does not use inmate money transfer authorizations for legal copies requested by inmates. A review of the log containing copy entries does not show a $ 200.00 charge on January 26, 2009. Please provide additional information to clarify what record you are seeking, if this does not address what you are seeking.
It is believed that you rare requesting the various records concerning yourself. To the extent that you are requesting any of these records concerning other inmates, the records involving the other inmates do not contain a specific reference to you and will not be provided pursuant to KRS 61.878(1)(l) and KRS 197.025(2).
On September 16, 2013, Kelly Tyree sent a follow-up letter indicating that prepayment of copying fees was required, and also stating the following:
Northpoint Training Center searched for and located money authorization forms signed by you.
Northpoint Training Center does not keep copies of all the state pay receipts that are sent out to inmates each month for informational purposes. The pay data is maintained in electronic form and I was able to print records with similar data as was included in the informational state pay receipts from May 2010 thru November 2010 while you were incarcerated at NTC. Inmate Accounts was able to print your account record and indicate where you received state pay, but NTC computer records for this information only goes back to May 2010. If you would like the account statement then it will be an additional $ 0.96 added to the overall total ?
The indigent lists located will be redacted as there are other inmate names and confidential financial information listed besides yours. The information concerning any other inmate will be redacted since the information is private and release of the information would constitute an unwarranted invasion of personal privacy pursuant to KRS 61.878(1)((a) and those entries do not contain a specific reference to you ? Regarding the indigent lists, the dates located are from April 2007 through November 2007 and January 2008 through May 2008. Inmate Account was also able to print your bank account statement and they indicated where you were indigent from June 2008 thru December 2010. If you would like that record then it will be an additional $ 0.96 added to the overall total.
I never received any additional information or clarification regarding item number four in your request; therefore I am unable to determine whether you were seeking other records for that portion of your request.
This office cannot resolve the factual issue of why Northpoint did not receive Mr. Stewart's initial request, and we necessarily base the following analysis on the assumption that a delivery error occurred outside the Department's control.
We find that Northpoint complied with the Open Records Act in regard to item 1 of Mr. Stewart's request, as it located the money authorization forms signed by him and offered to provide them upon receipt of payment. As to item 2, Ms. Barker on October 4, 2013, stated as follows:
NTC ? offered the electronic pay records it could provide from May 2010 to November 2010 while inmate Stewart was incarcerated at NTC, but did not have access to any other pay records. Central Office staff was not aware that NTC did not retain the specific documents requested when it referred inmate Stewart to NTC for the records. After further review of this issue, Central Office did not have the specific pay document that was requested, but did have access to the pay data that was contained in the requested record for a longer period than NTC. The pay records that are available in KOMS have been printed and are attached to this response to resolve the misunderstandings concerning the pay records. Pursuant to the retention [schedule], the pay records only need to be maintained until the audit and NTC offered the records it could access to inmate Stewart upon payment. (DOC KOMS series 03018.) The additional review of the matter yielded some additional old pay data that could not be obtained by NTC, but was available to IT staff in the DOC Central Office and that is attached to this response. The pay receipt documents that were requested are simply informational and reference material under series M0018 of the general state retention schedule and may be destroyed when no longer needed. They were not needed after an informational copy was provided to the inmates and were not retained.
For item 3, Ms. Barker stated:
[T]he indigent status lists that were located were offered to inmate Stewart upon payment. Not all of the lists were located, but they also were informational and reference material under series M0018 of the general state retention schedule and could be destroyed when no longer needed. They generally were not needed after a new list was generated as was done on a periodic basis and a number of the lists were not retained.
As to item 4, Ms. Barker reiterates that no records exist due to the fact that "money authorization forms are not used for legal copies."
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 this case, the agency has provided the responsive records that were not available and has explained the nonexistence of additional records through reference to the records retention schedule. We therefore find no substantive violation of the Open Records Act. 1
KRS 61.872(4) requires that "[i]f the person to whom the application is directed does not have custody or control of the public records requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " When Mr. Stewart was referred to Little Sandy Correctional Complex instead of Northpoint Training Center, the Department committed a procedural violation of KRS 61.872(4), albeit an inadvertent one. Furthermore, it was not made clear whether any of the records requested by Mr. Stewart were "in active use, in storage or not otherwise available" within the meaning of KRS 61.872(5). If this was not the case, the Department's delay beyond the five-day response period in KRS 197.025(7) constituted an additional procedural violation.
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.
Distributed to:
Willie James Stewart, # 093596Amy V. Barker, Esq.Jonathan Hall, Branch Manager
Footnotes
Footnotes
1 We assume, although it is not entirely clear, that Mr. Stewart was only requesting records that contained a specific reference to him. Pursuant to KRS 197.025(2), a correctional facility may deny an inmate's request for any record that does not mention him specifically. 03-ORD-150; 09-ORD-057. Therefore, to the extent he may have requested records not relating to him, that portion of the request could have been properly denied.