Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
Chris Hawkins ("Hawkins") submitted an open records request to the Luther Luckett Correctional Complex ("LLCC") on Dec. 9, 2013. Hawkins requested the following documents: "1. search policy (CPP) 2. contraband policy (CPP 9.6) 3. dry cell log identifying all staff and their observations of me when I was in dry cell from 11/29/13 through 12/1/13. 4. urine test results and/or result comments from urine test given to me on 12/1/13. 5. Orders or Eor's that authorized my being placed on dry cell and taken off dry cell. 6. Copy of receipt where I bought Tylenol in SMU @ LSCC." On Dec. 10, 2013, LLCC provided the following response:
Under KRS 61.878(1)(i) and (j), the Department may deny a request for copies of preliminary documents containing opinions, observation, and recommendations, which are not incorporated into or reflecting final agency action. Correspondence between third parties and Correction's staff regarding you that are not intended to give notice of final action of the agency cannot be provided because they are exempt. See 00-ORD-3; 98-ORD-27.
On Dec. 10, 2013, Hawkins filed this appeal, claiming that "the denial stated frivolous reasons for the denial," and that the "response stating that any of these documents are preliminary is a lie." LLCC provided a supplemental response on Dec. 20, 2013, stating that "our response did not address all of the records requested sufficiently." It then denied the first two requests for Corrections Policies and Procedures (CPP) on the grounds that the policies did not contain specific references to Hawkins and were exempt pursuant to KRS 61.878(1)(l) and KRS 197.025(2). It responded to the third request by providing copies of the dry cell log. It responded to the fourth request for urine test results by stating it had not received them yet and therefore could not provide them. It responded to the fifth request by stating that there was no EOR, and provided a copy of a statement from Sgt. Roberts regarding Hawkins being placed in a dry cell. It responded to the sixth request by stating that it did not have custody of that record, and directed him to the Little Sandy Correctional Complex. In its response to this office, LLCC acknowledged that its initial response did not sufficiently address all of the requested records, and referred to the reasons given in the supplemental response.
LLCC's initial response was clearly deficient. KRS 61.880(1) provides that "an agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." The provisions cited by LLCC in its initial response bear no relation to the records requested by Hawkins, and thus LLCC's initial response was deficient. However, LLCC subsequently cured that deficiency in its supplemental response.
Regarding the first two requests for Corrections Policies and Procedures, KRS 197.025(2) provides that "the department shall not be required to comply with a request for any record from any inmate . . . under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." The Department of Corrections Policies and Procedures contain no specific reference to Hawkins. Accordingly, LLCC did not violate the Open Records Act in not producing those documents. 13-ORD-022; 07-ORD-124.
Regarding the third request for the dry cell log and the fifth request for the authorization to place Hawkins in a dry cell, LLCC has provided the documents responsive to those requests, rendering those requests moot pursuant to 40 KAR 1:030 § 6. Regarding the fourth request for the urine test results and the sixth request for the receipt for the Tylenol purchase, LLCC properly denied those requests on the grounds that it did not have possession of those documents. "A public agency cannot afford a requester access to a record that it does not have or that does not exist . . . The agency discharges its duty under the Open Records Act by affirmatively so stating." 10-ORD-054. Accordingly, we find that LLCC did not violate the open records act in not providing urine test results and a receipt not in its possession.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
# 437
Distributed to:
Chris Hawkins # 103061Sheri MattinglyAmy V. Barker