Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Chris Dixon appeals the Bell County Detention Center's handling of his August 17, 2015, request for a copy of:
[T]he Bell County Detention Center's rules, regulations, policies and procedures authorizing the discipline of it's [sic] prisoners for acts committed while housed in the Bell County Detention Center; and a copy of the Conduct Rules that govern the conduct of Bell County Detention Center Prisoners/ inmates.
Having received no response to his request, Mr. Dixon initiated this appeal on August 27, 2015, asserting that 501 KAR 3:140 requires jails to "have a written statement of prisoner rights that shall address . . . [d]isciplinary procedures" and "a written policy and procedure for maintaining discipline . . . ."
Upon receipt of this office's notification of Mr. Dixon's appeal the Detention Center issued a written response through counsel. Counsel explained that "this appeal is [Jailer Gary Ferguson's] first notice of any request made by Mr. Dixon." Mr. Ferguson subsequently provided Mr. Dixon with a copy of a single-page document captioned "Rules and Regulations of the Bell County Detention Center." That document contains twenty-nine statements identifying prohibited conduct and rules governing inmate mail, visitation, phone calls, inmate property, and grievances. The document contains signature lines for the inmate and the jailer. Only the jailer's signature appears on the copy provided to this office.
With respect to Mr. Dixon's allegation that the Bell County Detention Center failed to respond to his open records request, the conflicting evidentiary record precludes us from conclusively determining whether the Detention Center violated KRS 61.880(1), 1 as supplemented by KRS 197.025. 2 Mr. Dixon maintains that he transmitted his request to the Detention Center and that the Detention Center failed to respond. The Detention Center insists that it received its "first notice of any request made by Mr. Dixon" when our September 2, 2015, notification of Mr. Dixon's open records appeal reached Mr. Ferguson. We trust that the Detention Center is fully aware of its obligation to comply with KRS 61.880(1), as supplemented by KRS 197.025(7), by issuing a written response to an open records request, within five business days, in which it notifies the requester whether his request will be honored or denied. In the absence of incontrovertible proof (such as a return receipt following delivery of a certified letter) that it actually received Mr. Dixon's request, 3 we assign no error to the Detention Center. 02-ORD-1 (the Attorney General "is not equipped to resolve a factual dispute concerning the actual delivery" of an open records request); 05-ORD-252 (if request did not reach the agency, the agency "cannot be faulted for its failure to respond"); accord, 15-ORD-014, page 3, note 2.
With respect to the records identified in Mr. Dixon's request, the Detention Center mailed him "a copy of the Inmate rules and regulations . . ." in the form of the document captioned "Rules and Regulations of the Bell County Detention Center." Although that document does not narrowly address disciplinary procedures, it broadly addresses prohibited inmate conduct and inmate rights in relation to visitation, phone calls, inmate property, and inmate grievances. It may constitute the only responsive record in the Detention Center's possession. If so, it is incumbent on the Detention Center to confirm this fact, in writing, to Mr. Dixon. If not, the Detention Center must locate and provide copies of any additional nonexempt 4 records responsive to his request. In conducting a search for responsive records, the Detention Center should focus on policies governing the disciplinary process and rules governing inmate conduct. Until it has ensured that all nonexempt records responsive to Mr. Dixon's request have been located and disclosed, or it has confirmed, in writing to Mr. Dixon, that no additional records exist, the Bell County Detention Center's obligations under the Open Records Act will not be fully discharged.
Either party may appeal this decision 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 KRS 61.880(1) establishes the basic legal requirements for public agency response to open records requests. It provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
2 KRS 197.025(7) supplements KRS 61.880(1) by extending the open records response time for correctional facilities by providing:
(7) KRS 61.870 to 61.884 to the contrary notwithstanding, 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, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
Because Mr. Dixon is an inmate, and the agency to which his request is directed is a correctional facility, KRS 197.025(7) extends the KRS 61.880(1) deadline for agency response from three working days to five working days. KRS 197.025 contains additional requirements for inmate open records requests and appeals at section (3) (requiring inmates to appeal to the Office of the Attorney General before initiating appeals to the courts), Section (4) (prohibiting inmates from hand-delivering their requests), and sections (1), (2), (5), and (6) (placing additional restrictions on inmate's rights of access).
3 The Open Records Act does not require a requester to submit his request by certified mail, return receipt requested. Standard mail delivery is sufficient under the Act. KRS 61.872(2). A return receipt for certified mail would, however, provide proof of actual delivery of the request. 08-ORD-007, p. 2, note 1.
4 KRS 197.025(6) restricts access to "policies and procedures or administrative regulations of the department [of Corrections] which address the security and control of inmates and penitentiaries . . . ."