Opinion
Opinion By: Jack Conway,Attorney General;James M. HerrickAssistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Division of Probation and Parole and the Kentucky Parole Board violated the Open Records Act in responding to open records requests by Charon Anderson, a detainee at the Henderson County Detention Center. For the reasons stated below, we find no violation of the Act.
Ms. Anderson's first request was dated December 13, 2014, but was only received by the Probation and Parole office on December 30, 2014, one day before her appeal to the Attorney General was received in this office. She requested two items: "Any & all documentation to show that I was restricted to my address [in] Lexington KY," and any "Proof that I moved or was evicted from my residence."
On December 30, Probation and Parole Officer Kirk Gausepohl responded to this request. As to the first item, he mentioned (and the record shows) that he had responded two days earlier to another request from Ms. Anderson by sending her a copy of her conditions of supervision, which included the statement: "I understand that I will maintain only one residence and shall not change my residence without approval of my officer." As to that document, which appears to have been the only responsive record, this appeal is therefore moot, since the record has been provided. 13-ORD-001; 04-ORD-046; 03-ORD-087; OAG 91-140.
With regard to the second item, proof of a change in home address, Mr. Gausepohl has provided Ms. Anderson with a copy of her Notice of Preliminary Hearing and the findings and order from her Preliminary Mandatory Reentry Supervision Revocation Hearing, which recite the testimonial evidence relied upon to prove her unreported change of residence. In a response to this appeal dated January 16, 2015, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, further states:
The only other possibly responsive record located and not sent with the response would be a reporting record completed by Ms. Anderson when she reported to her probation and parole officer after orally acknowledging her change of address. This was not considered to be responsive since Ms. Anderson was asked to complete the report with this information after admitting her move. If Inmate Anderson is seeking this record, she can send a money order made payable to the Kentucky State Treasurer in the amount of $ .59 to the Lexington Probation and Parole office where she mailed her original request and indicate that she is seeking that specific record.
Since all responsive records have been provided or made available to Ms. Anderson, we find the second portion of her appeal against the Division of Probation and Parole to be likewise moot.
We turn to Ms. Anderson's request for records from the Parole Board, also dated December 13, 2015, which read as follows:
1. I am requesting, pursuant to KRS 439.3108(1)(a) that Ms. Caroline Mudd, and Ms. Sarah Johns[o]n 1 did not violate this statute by attaching proof per my final revocation hearing on other documents [ sic ].
2. I am also requesting proof that Ms. Mudd, and Ms. Johns[o]n did not violate KRS 439.3108(1)(b).
2
While parts of this request are confusingly worded, it appears to ask for "proof" that two members of the Parole Board did not violate KRS 439.3108(1), which allows the Department of Corrections or the Parole Board to impose graduated sanctions.
Ms. Barker indicates that the Parole Board did not receive Ms. Anderson's request prior to receiving this appeal. As such, we do not find a violation of law in the lack of a response from the Board.
Substantively, Ms. Barker argues that the request is for information rather than records, and alternatively argues that:
the Parole Board does not create records of 'proof' to show compliance with statutes in its decisions. The Parole Board provides orders concerning the decisions that it makes. That order was provided to her at the time of the decision. If Inmate Anderson is seeking the order by the Parole Board for its last decision concerning her, she may send a request for that specific record with a money order made payable to the Kentucky State Treasurer in the amount of $ .59 [to the] Parole Board. She should note on the envelope that it is an open records request.
Although Ms. Anderson's request to the Parole Board may be phrased somewhat argumentatively, it does identify itself as an open records request, and we have no difficulty in construing the text of the letter as encompassing a request for records. The request fails, however, in its description of the records requested.
With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.)" [T]he primary purpose of the [Open Records] Act is making records available for public inspection? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Based on Ms. Barker's representations, a request for "proof" that Parole Board members complied with a statute does not describe a readily identifiable class or type of records. Cf . 13-ORD-077 ("records indicative of assistance" not a precise description). The Parole Board does not classify its records according to such a category; furthermore, what might constitute "proof" of a fact or legal conclusion to one individual might not tend to prove that fact or conclusion in the opinion of another. To the extent that the Parole Board has been able to identify a responsive record (the Board's most recent order concerning Ms. Anderson), it has offered to provide her a copy of that record. Therefore, we find no denial of access to public records and no violation of the Open Records 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 proceeding.
Footnotes
Footnotes
1 Caroline Mudd and Sarah Johnson are members of the Parole Board.
2 KRS 439.3108(1) provides: Notwithstanding any administrative regulation or law to the contrary, including KRS 439.340(3)(b), the department or board may:
(a) Modify the conditions of community supervision for the limited purpose of imposing graduated sanctions; and
(b) Place a supervised individual who violates the conditions of community supervision in a state or local correctional or detention facility or residential center for a period of not more than ten (10) days consecutively, and not more than thirty (30) days in any one (1) calendar year. The department shall reimburse the local correctional or detention facility or residential center for the costs of incarcerating a person confined under this paragraph at the rate specified in KRS 532.100.