Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections, Division of Probation and Parole, District 18, violated the Kentucky Open Records Act in its disposition of a request from Western Kentucky Correctional Complex inmate Carlton Tucker Freeman. For the reasons stated below, we find no violation of the Act.
Mr. Freeman's request, written on a Request for Inspection of Records form issued by the Executive Department for Finance and Administration and addressed to Eric Stagner at the District 18 office, read as follows:
To testify at Carlton Freemans Parole Hearing when date is set by the parole board. To give Eric Stagners supervices [ sic ] name at his office. To uptain [ sic ] phone records from 7/7/16 at the Probation & Parole Office at Mr. Eric Stagners office in District 18. All of Eric Stagners Employment records, Drug test records, metal [ sic ] records, medicail [ sic ] records & All history of Eric Stagner. All of Carton Freeman records from Eric Stagner office.
The bottom portion of the form, designated as "Applicant's Copy," contains the above with the addition of "All of his records and All of Carlton Freemans records from his office and all personel [ sic ] that has work on Carlton Freemans case."
The date of the request is unclear. At the top of the form is written "12-28-16," which appears to have been altered from "12-20-16" and/or "12-26-16." The bottom part of the form is filled out with the date "12/27/16" (which has been written over "12/23/16"). Moreover, the response from District 18, dated January 19, 2017, referred to the document as an "undated request form."
Given this contradictory information, we cannot conclusively determine whether the five days (excluding weekends and legal holidays) allowed by KRS 197.025(7) had elapsed before Mr. Freeman initiated his appeal, which was dated January 5, 2017 and received in this office on January 9, 2017. 1 We therefore do not deem Mr. Freeman's appeal unperfected for not including a copy of a response that was only issued on January 19, 2017.
The January 19 response, signed by District Supervisor Sabrina Farris, explained that the District had not responded earlier because "[g]iven that it requests testimony at a hearing like a subpoena, the officer misunderstood that it was an open records request." From this information, it appears that the response was not timely under the terms of KRS 197.025(7), although this procedural defect is somewhat mitigated by Officer Stagner's understandable confusion. Ms. Farris' response stated, in principal part:
1) The Probation and Parole Office does not maintain phone records for 7/7/16 and cannot provide those records. Further, phone records are not the type of records that would contain a specific reference to you and would not be provided to you even if the Probation and Parole Office maintained those records. KRS 51.878(1)(l) and KRS 197.025(2). I have been informed that the Department of Corrections does not have phone records for the phone system in this office, so the records are not possessed by a state agency.
2) The name of Eric's supervisor is a request for information?
3) ? Employment and other personal records for an employee cannot be provided to an offender because these types of records do not contain a specific reference to the offender and the records are exempt from disclosure under KRS 61.878(1)(l) and 197.025(2). ?
4) You further request "all of Car[l]ton Freemans records from his office and all personel that has work on Carlton Freemans case." ? Reports and records prepared or gathered by probation or parole officers in the discharge of their official duties are exempt from disclosure and cannot be provided under KRS 439.510 and 61.878(1)(l).
The letter went on to suggest other records that Mr. Freeman might have been seeking in that portion of his request, and offered to provide those to him. Those records included Mr. Freeman's conditions of SOCD, supplemental sex offender conditions, sex offender registration form, Administrative Law Judge decision, final revocation decision from the Parole Board, notice of preliminary hearing, notice of discharge, discharge summary from Dismas Charities, sex offender conditional discharge violation warrant, and items mailed by Mr. Freeman to Officer Stagner.
With regard to the absence of any telephone records from the office in question, 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 the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess. Since there is nothing in the record to indicate that telephone records for the office should exist, we affirm this portion of the District's disposition on that basis.
Regarding the request for the name of Officer Stagner's supervisor, we agree with the District that requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
Accordingly, we find no violation of the Act as to this portion of the request.
The various records requested on Officer Stagner himself are not available to Mr. Freeman under KRS 197.025(2), which provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, the [D]epartment [of Corrections] shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
We have consistently interpreted this provision as supporting the Department of Corrections' position that only documents mentioning the inmate by name need be provided. 03-ORD-073; 99-ORD-157; 98-ORD-150. This rule has been specifically applied to inmate requests for employment-related records of Corrections personnel. 14-ORD-088. Since the employment records and other personal records on Officer Stagner do not mention Mr. Freeman specifically, KRS 197.025(2) is dispositive of this issue on appeal. Accordingly, we need not address the other provisions cited by the District and the Department for these records, KRS 61.878(1)(a) and KRS 197.025(1).
Lastly, the Probation and Parole records from Officer Stagner's office relating to Mr. Freeman's case, KRS 439.510 provides in pertinent part:
All information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet.
The records in Officer Stagner's office concerning Mr. Freeman would presumably constitute "information obtained in the discharge of official duty by [a] probation or parole officer" and would therefore be privileged under KRS 439.510, as incorporated into the Open Records Act by KRS 61.878(1)(l). We believe the analysis contained in 01-ORD-120 and 05-ORD-265 (copies attached) is controlling on the facts presented and adopt these prior decisions as the basis of our determination herein. See also OAG 88-14 ("documents prepared and submitted by a parole officer" are "specifically excluded from public inspection" by KRS 439.510).
Other records possibly intended to be within the scope of Mr. Freeman's request have been offered to him upon payment of reasonable copying charges and postage. Any issues concerning such records are therefore moot under 40 KAR 1:030, Section 6. 2 Thus, we find 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 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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