Request By:
Charon Anderson, # 177122
Kirk Gausepohl
Amy V. Barker, Esq.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Division of Probation and Parole violated the Open Records Act in responding to the open records request of Charon Anderson, a detainee at the Fayette County Detention Center. For the reasons stated below, we find no violation of the Act.
Ms. Anderson's request was dated September 3, 2014, but was only received by the Probation and Parole office on September 19, 2014, the same day her appeal to the Attorney General was received in this office. She requested three items: "the District Supervisor[']s signature allowing F.C.D.C. to detain me past the 4 hours allot[t]ed pursuant to KRS 439.3108(5)"; "[t]he Releasee's Report, that shows that I worked 12 hours, dated on 08-01-2014"; and "the Court Order or Parole Board Order that extends the 10 day extention [sic] defined in KRS 439.3108(6)."
On September 19, 2014, Probation and Parole Officer Kirk Gausepohl responded to Ms. Anderson's request. As to the Releasee Report, he attached a copy to his letter. As to that document, this appeal is therefore moot, since the record has been provided. 13-ORD-001; 04-ORD-046; 03-ORD-087; OAG 91-140.
Regarding the District Supervisor's approval for Ms. Anderson's detention beyond four hours, KRS 439.3108(5) provides in part: "If the graduated sanction involves confinement in a correctional or detention facility, confinement shall be approved by the probation and parole district supervisor, but the supervised individual may be taken into custody for up to four (4) hours while such approval is obtained." Mr. Gausepohl asserts that the District Supervisor's approval for Ms. Anderson's confinement was in oral rather than written form, and therefore no record responsive to her request was created. We note that the statute does not expressly require such approval to be in writing.
As to the request for a court order or Parole Board order allowing Ms. Anderson to be detained for more than ten days, KRS 439.3108(6) provides: "A sanction that confines a supervised individual in a correctional or detention facility for a period of more than ten (10) consecutive days, or extends the term of community supervision, shall not be imposed as a graduated sanction, except pursuant to an order of the court or the board." (Emphasis added.) Mr. Gausepohl states that Ms. Anderson's present confinement has not been imposed as a graduated sanction; rather, she is in custody pending a hearing on a final revocation of her parole after twice being arrested for parole violations.
KRS 439.3107 authorizes the Department of Corrections to impose graduated sanctions for violations of conditions of community supervision. KRS 439.3108(3) provides that when a probation and parole officer gives notice of a graduated sanction, "the supervised individual shall immediately accept or object to the sanction or sanctions proposed by the officer." According to Mr. Gausepohl, upon her second arrest for parole violations, Ms. Anderson was offered a graduated sanction but rejected the offer. Accordingly, she is currently in custody awaiting a parole revocation hearing, and the ten-day confinement limit for graduated sanctions in KRS 439.3108(6) does not apply. Furthermore, her first arrest for parole violations resulted in only a seven-day graduated sanction. Thus, in neither case was there an order from a court or the Parole Board authorizing her confinement for more than ten days as a graduated sanction.
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 record exists. 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). Accordingly, in light of Mr. Gausepohl's explanation, we conclude that the Division of Probation and Parole did not violate the Open Records Act in its response to Ms. Anderson's request.
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 proceeding.