Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Parole Board violated the Kentucky Open Records Act in failing to respond to Kurt Lowe's request for records. By letter dated September 21, 2016, Kurt Lowe, an inmate at Green River Correctional Complex, requested that the Kentucky Parole Board provide him "one copy of each and every record, electronic and paper, contained within my Kentucky Parole Board file, which is required for the filing of and appeal of the Board's Order Denying Parole. This request for records, is up to and including but not limited to: supporting the order or recommendation for [SAP] Substance Abuse Program, victim impact statements, etc." By letter dated October 14, 2016, Mr. Lowe appealed to this office, stating that the Parole Board was "denying my records request via non-response. . ."
Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of the Kentucky Parole Board. Ms. Barker's response included an affidavit from Jennifer L. Markey, Administrative Specialist III, which stated that she provides assistance to the Kentucky Parole Board and that part of her duties includes opening and distributing mail for the Parole Board. Ms. Markey stated that she had reviewed Mr. Lowe's request dated September 21, 2016, attached to the appeal from the Attorney General's Office, and she stated that the request was not received by the Parole Board office prior to receipt of the appeal. Because the record on appeal has no proof to show that Mr. Lowe's request was actually mailed, and Ms. Markey has no record of having received his request, Mr. Lowe cannot demonstrate that the Parole Board has failed to respond to his request in violation of the Open Records Act.
Ms. Barker's response contained the following additional information:
The Parole Board is administratively attached to the Justice and Public Safety Cabinet and the Department of Corrections (DOC) provides administrative and other assistance to the Board pursuant to KRS 439.320 and 340. As part of this assistance, the records sought in the request letter are maintained electronically, or in the case of some older files, in old paper files that have not yet been scanned into an electronic format by the Department of Corrections.
Ms. Barker further advised that:
Inmate Lowe requests all records in his Parole Board file that are required to appeal a parole decision. An offender may request reconsideration of a parole denial decision pursuant to 501 KAR 1:080, Kentucky Parole Board Policy and Procedure 10-00. (http://justice.ky.gov/Pages/Statutes-and-Regulations.aspx,, KYPB 10-00, p. 2.) As indicated in the response letter [from Lee VanHoose, Chair, KentuckyParole Board], there are no records that are required to request reconsideration of a parole decision. The response letter provided a form that may be used to request reconsideration, but is not required. The request further specifically mentions victim impact letters and records concerning a substance abuse program recommendation. Those specific records, to the extent they exist, are kept in the electronic record maintained by the DOC. The Parole Board does not maintain a separate Parole Board file for an offender it reviews for parole. The Parole Board decision and letters received by the Board concerning an offender being reviewed for parole are maintained in the DOC electronic record.
Attached to Ms. Barker's response was a letter from Lee A. VanHoose, Chair, Kentucky Parole Board. Ms. VanHoose's letter addressed Mr. Lowe's request for specific records:
You further indicate in your request that you are specifically seeking records concerning the "recommendation for [SAP] Substance Abuse Program, victim impact statements, etc." Pursuant to KRS 439.320 and 340, the Department of Corrections (DOC) provides the administrative assistance required by the Board and the Board does not have custody or control of the records reviewed for parole decisions. These records are maintained and controlled by the DOC. You will need to write to Brandi Hawkins, Department of Corrections, Offender Information Services, P.O. Box 2400, Frankfort, KY 40602-2400 to request the records that you seek other than the form previously indicated.
Pursuant to KRS 61.880(1) , an agency must respond to the requester within three days after receipt of an Open Records request, and it is this lack of response that Mr. Lowe appeals. The record on appeal contains insufficient information for the Office of the Attorney General to resolve the factual dispute concerning the delivery and receipt of the open records request allegedly made. Due to the lack of information presented in this appeal, we make no finding in this regard. See 05-ORD-013, 03-ORD-061. "Obviously, an agency cannot respond to a request it does not receive." 05-ORD-013. Absent objective proof, this office finds no procedural violation by the Parole Board.
The Parole Board's letter clarified that it does not maintain the requested records and further provided Mr. Lowe with contact information for the custodian of the requested records, in compliance with KRS 61.872(4). 1 The Parole Board has fully complied with the relevant provision of the Open Records Act in directing Mr. Lowe to the custodian of the requested records. 08-ORD-204.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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