Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Henderson County Detention Center ("HCDC") violated the Open Records Act in failing to timely respond to an appeal, and in not providing records which did not exist. We find that HCDC committed a procedural violation of the Open Records Act in failing to timely respond to a request, but did not substantively violate the Act in not providing documents which had not yet been created.
Harold Jones ("Jones") submitted an open records request to HCDC on Mar. 28, 2014. Jones requested "the incident report from the disciplinary hearing being held against me by Captain Floyd on 3/28/2014, as well as the written decision regarding this hearing as well as the appeal decision from this disciplinary hearing. " Jones initiated this appeal on April 5, 2014, on the grounds that "as of the above date I have received absolutely no response, and therefore respectfully appeal." HCDC initially responded on Apr. 10, 2014, but subsequently withdrew that response on Apr. 11, 2014 as addressing another open records request by Jones. HCDC responded to this appeal on Apr. 14, 2014 through the Henderson County Attorney's Office, stating:
On March 25, 2014, Mr. Jones was administered a urine drug test by the Henderson County Detention Center. The result of that test was positive for K-2 Synthetic Marijuana. An incident report was created on March 25, 2014 by Captain Floyd. The incident report indicates the sample had been forwarded to Methodist Hospital for further testing.
On March 26, 2014, Mr. Jones was served with a notice of disciplinary hearing to be heard on March 27, 2014. However, due to the pending test results from Methodist Hospital, a disciplinary hearing was not conducted by Captain Floyd or anyone else concerning the incident which occurred on March 25, 2014. . . .
To clarify, when the Henderson County Detention Center conducts a random drug screen within the detention center, it provides a sufficient basis to take disciplinary action against the inmate upon a positive drug test. However, in order for the Henderson County Detention Center to pursue criminal charges relating to the use or possession of the drug, the sample must be sent to a laboratory for more accurate testing. . . .
Based upon the pending investigation into criminal charges, the open records request made by Mr. Jones was "held" by Colonel Gibson. Further, at the time the request was received by Colonel Gibson, neither the disciplinary hearing nor the appeal had been conducted. In fact, as of the date of this letter, the results from the urinalysis have not been returned to the Henderson County Detention Center. . . . The Henderson County Detention Center appears to have relied upon K.R.S. 61.878(1)(h) as they were in the "process of detecting and investigating statutory or regulatory violations." K.R.S. 61.878(1)(h). After a review of the incident report, we have advised the Henderson County Detention Center that disclosure of the incident report would not harm the agency under the exemption in K.R.S. 61.878(1)(h). Therefore, we have advised the Henderson County Detention Center to disclose the incident reported from March 25, 2014 to Mr. Jones at this time as it does not appear to be exempt from disclosure and the records requested concern Mr. Jones.
HCDC subsequently provided Jones with the incident report on Apr. 15, 2014.
KRS 197.025(7) provides that "upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays." It is not disputed that HCDC did not respond to the request within five business days. HCDC may be entitled to withhold records based on the ongoing investigation exception in KRS 61.878(1)(h), but it must still notify the requester and invoke that exception within five business days. Accordingly, HCDC committed a procedural violation of the Open Records Act in not providing a response within five business days.
Regarding the incident report, HCDC has provided it, so the request is moot as to the incident report. Regarding the written decision and appeal, HCDC states that those do not exist at this time, and has offered to provide them after they are created upon request. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. Accordingly, HCDC did not violate the Open Records Act in failing to provide a written decision and appeal that have not been created yet.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(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.
Distributed to:
Harold Jones # 137917Col. Leslie GibsonSteve Gold