Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Mason County Detention Center ("MCDC") violated the Open Records Act in destroying an inmate's file five years after release of the inmate, and in not maintaining a permanent copy of its policies and procedures concerning fees and work release programs. We find that MCDC did not violate the Open Records Act in destroying an inmate's file five years after release of the inmate, but did violate the Open Records Act in failing to maintain a permanent copy of its policies and procedures concerning fees and work release programs.
Jason Mullikin submitted an Open Records Request to MCDC on July 5, 2016, requesting:
paper copies of documents showing the following information: the dates of my (Jason Mullikin) incarceration in 2007, which should run from May to October; the days I worked as a work release inmate during the 2007 incarceration; the policy for pay to inmate workers during the 2007 confinement; and the schedule of jail fees during the same period of confinement in 2007.
MCDC responded on July 12, 2016, stating that it "enclosed the available digital copies of your file as maintained through the Jailtracker management system. The hard copy file is unavailable due to your being released in October of 2007."
Mullikin initiated this appeal, received July 27, 2016, on the sole grounds that "the response sidesteps the request." MCDC responded on Aug. 8, 2016, stating:
I have provided all information available to Mr. Mullikin that is available under my administration as Jailer for the Mason County Detention Center effective January 5, 2015.
. . . .
I have included the current and updated policy of the inmate worker pay program effective with my administration January 5, 2015. I do not have a policy or fee schedule related to inmate pay during the period of time requested of May to October of the year 2007. This Jailer has no knowledge or information as to if the Department of Corrections would have on file the fee schedule in effect in the year of 2007.
In accordance with the records retention and achieve [sic] schedule, I have provided documentation of Mr. Mullikin's incarceration with information available via JailTracker, the detention centers [sic] records management program. Hard copy files according to the retention schedule are not required to be kept 5 years upon release of the inmate to which they have been destroyed and disposed of properly.
MCDC attached its current fee schedule, and policies for prison programs and services, work programs, education programs, recreational programs, programs for state prisoners, and religious programs. The policies had an effective date of Mar. 1, 2016. MCDC also attached a copy of KRS 441.127.
The Mason County Attorney also responded to the appeal on behalf of the Mason County Jailer, received Aug. 15, 2015, stating that:
Pursuant to the records retention policy of the Mason County Detention Center, none of these documents were available, except for the digital file available through Jailtracker which was provided to the Appellant . . . . The response included the records retention schedule pursuant [sic] 501 KAR 3:020. No other records were provided because no other records existed.
Upon receipt of the appeal, Jailer O'Hearn attempted to be accommodating to the Appellant . . . . The response provided current schedules and policies, but indicated that the Jailer was not in possession of the schedules, policies or other records in effect during the period covered by the request. . . .
. . . The Jailer does include a copy of KRS 441.127 regarding credits for work in a community service program, but there are no records in existence which reflect whether he was in a work release program or a community service program.
The Mason County Attorney attached copies of a page from the County Jailer Records Retention Schedule, an Incident Report pertaining to Mullikin dated July 25, 2007, a Facility Admission Report for Mullikin, and MCDC's response to Mullikin's appeal with the attached documents.
The County Jailer Records Retention Schedule, Series L2751, governs inmate record files, and states regarding their retention, "destroy five (5) years after release of inmate. " 1 A county is thus instructed to destroy an inmate's file five years after the release of the inmate. Mullikin was released in 2007. MCDC was thus required to destroy his inmate file five years later in 2012. Mullikin's inmate file "was destroyed in the normal course of business in compliance with applicable records retention schedule requirements." 11-ORD-014. Accordingly, MCDC did not violate the Open Records Act in not maintaining documents pertaining to the dates of Mullikin's incarceration or his participation in a work release program.
However, the County Jailer Records Retention Schedule, Series L6922, governs "jail policy, procedures and organization," and provides that "pursuant to 501 KAR 3:020(1) . . . for jails that house state prisoners, jail administration must develop and maintain . . . a policy and procedures manual that has been adopted by the governing authority and filed with the State Department of Corrections (DOC)." 501 KAR 3:020 § 1(3) provides that the policy and procedure manual shall include "administration," "fiscal management," "prisoner programs," and "prisoner services" for the jail. Id. §§ (a), (b), (j), (k). Regarding retention, the schedule requires that the jail "retain one (1) copy of approved policy and procedures and organizational chart permanently." MCDC indicates that it did not retain a copy of its policies and procedures regarding fees and work release programs for 2007. In failing to maintain a permanent copy of its policies pertaining to fee schedules and work release programs, MCDC violated the Open Records Act. We do not intend to imply that this failure was in any way the responsibility of the current jailer, who appears to have made every reasonable attempt to comply with the request; we find only that MCDC as an entity failed to properly retain a copy of its procedures.
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.
Footnotes
Footnotes
1 County Jailer Records Retention Schedule, Ky. Dep't. for Libraries and Archives 3 (June 9, 2016), available at http://kdla.ky.gov/records/recretentionschedules/Documents/Local%20Reco….