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 Louisville Metro Department of Corrections ("LMDC") violated the Open Records Act in the disposition of Micheal Whitehead's request to inspect and copy records relating to his incarceration there. For the reasons that follow, we find that LMDC's response was partially in violation of the Act.
The record indicates that Mr. Whitehead, currently an inmate at Blackburn Correctional Complex, initially sent his request on April 21, 2014, to former Communications Director Pam Windsor, who by that time was no longer employed by LMDC. He states that he sent a follow-up letter on May 12, 2014, but LMDC reportedly has no record of having received either communication.
Mr. Whitehead was incarcerated at LMDC from October 1 to December 17, 2009, and again from February 17 to March 5, 2010; he was under home incarceration between those periods. He requested copies of the following:
1. Any records related to visits I had while at your facility, including visits with my daughter, Kaylee Elizabeth Whitehead.
2. Incoming legal mail logs for me for the time I was at your facility, specifically I remember receiving some legal mail in the first couple of weeks I was there.
3. Phone records for the following phone numbers: [omitted]
4. Any other records that pertain to me. I would like a summary of any such records.
5. Medical records.
Having received no response, Mr. Whitehead appealed to the Attorney General. His appeal was received in this office on July 7, 2014.
On July 18, 2014, Assistant Jefferson County Attorney Brianda A. Rojas responded to Mr. Whitehead's appeal, explaining that LMDC had been unable to find any record of receiving Mr. Whitehead's correspondence. Since we have no basis to resolve the factual question of when the request was received, or by whom, we make no finding as to the timeliness of the agency's response. On the same date, July 18, LMDC issued a written response to each of Mr. Whitehead's requests and concluded: "By conducting a search for all records requested and providing access to and/or copies of all nonexempt records in accordance with the Kentucky Open Records Act, we will consider this request to be complete."
We address the merits of each response individually:
[1] All log books for inmate visits are destroyed after 2 years. However, after a search of our computer system -- Inmate Management System (LMDC Computer program), I am able to provide you with a visitation log for you with dates from 10/03-2009 -- 2/24/2010 (please see attached).
Although LMDC does not refer to a records retention schedule under which visitor logs are destroyed after two years, we note that record series L6664 in the Louisville Metro Records Retention Schedule, "Sign-In and Sign-out Log, " is subject to destruction after 30 days. Assuming that this is the applicable retention schedule, LMDC would not be expected to possess those logs at this time. 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. Since the log books no longer existed, LMDC did not violate the Open Records Act by providing what pertinent records it had.
[2] Incoming legal mail logs for LMDC that mention you as the recipient. According to LMDC, Departmental Policy under Archive Schedule, log books are kept for 3 years in house, before sending to archives.
This statement, by itself, is insufficient as a response to the request. Although KRS 61.872(5) contemplates that records "in storage" may take longer to retrieve after an open records request is made, there is no statutory provision that would allow a public agency to deny inspection of a public record merely because it has been archived. Rather, pursuant to the right of inspection under KRS 81.872(2), the agency "must retrieve and review the archived records itself and disclose responsive records." 07-ORD-146. Since the presence of records in archives is not a legal basis for denying a request, we must find that this portion of LMDC's response failed to comply with the Open Records Act.
[3] Phone records are kept 1 year per the Professional Standards Unit. This information is no longer available. We have a contract with Securas 1 [ sic ]. Conversations are kept one year then Securas destroys, unless otherwise requested beforehand -- per PSU.
[4] All general inmate records as well as home incarceration records are destroyed after 2 years, per the Metro Government Retention Schedule. This information is no longer available. However, after a search of our computer system -- Inmate Management System (LMDC Computer program), I am able to provide you with a list of your housing areas from 10/01/2009 -- 03/03/2010. Kentucky Department for Libraries and Archives (KDLA) Home Incarceration Series L3131 and; KDLA Inmate Record Folder, Series L3129.
As with the response to item 1, we find that LMDC has sufficiently explained the absence of the requested records in items 3 and 4 and did not violate the Open Records Act by providing the pertinent records it still possessed.
[5] Any medical records. You must provide a signed release of information with a witness signature in order to comply with current medical privacy regulations. Medical records are retained for 5 years per the current Metro Government retention schedule and; KDLA Series L6538 (C) KRS 196.280, 197.025, 610.320, 610.340 (V).
Inmates may properly be required to submit a specialized release form to obtain copies of their medical records. 08-ORD-067. Therefore, LMDC did not violate the Open Records Act by requiring Mr. Whitehead to submit such a form.
In conclusion, we find that LMDC violated the Open Records Act by failing to retrieve requested records that been archived. In all other respects, LMDC's response complied with the 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.
Distributed to:
Micheal Whitehead, # 235196Ms. Ann CromwellBrianda A. Rojas, Esq.
Footnotes
Footnotes
1 This is evidently a reference to the telephone service Securus Technologies, Inc.