Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Warren County Probation and Parole Office violated the Open Records Act in its disposition of inmate James Coitrone's open records request for court orders from the Warren County Circuit Court. For the reasons stated below, we find that the agency did not violate the Act, but should now provide the requested records.
James Coitrone, an inmate at Little Sandy Correctional Complex ("LSCC"), initiated an open records appeal by letter dated February 28, 2018. Attached to the appeal was a copy of a request, dated January 30, 2018, from Mr. Coitrone ("Appellant") to the Warren County Probation and Parole Office ("Probation & Parole"), in which he requested "a copy of the order that granted [Appellant] shock probation under case no: 06-CR-00303 Warren County Circuit Court Division 2, on January 29; 2007; and a copy of the order on motion to revoke probation dated 9/28/2012." Attached to that request was a copy of one of the records requested, an "Order on Motion to Revoke Shock Probation, " Warren Circuit Court, Division 2, dated September 28, 2012. Appellant asserted, in his appeal, that Probation & Parole had not responded to his request for records.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of Probation and Parole by letter dated March 8, 2012. Attached to Ms. Barker's letter was a letter signed by Katy Kilgore, District 3 Assistant Supervisor, Probation and Parole. Ms. Kilgore's letter stated that "[o]ur office has no record of the receipt of this request and both Office Support Assistants do not recall receiving the request by mail. "
Receipt of Request . KRS 197.025(7) provides that "upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request." Probation and Parole has stated that it has no record of the request. This office has consistently acknowledged its inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request. 12-ORD-204. In the absence of any proof that Probation and Parole actually received Appellant's request, we cannot find that the agency violated KRS 197.025(7) in failing to respond to a request it did not receive.
Duplicative Request . Regarding the request for the order granting shock probation, Probation and Parole's letter explained that Appellant had recently been provided a copy of the order granting shock probation from LSCC. On that basis, Probation and Parole asserted that "[a]n agency is not required to provide duplicate copies of records." With respect to duplicative requests for documents, this Office has consistently held that that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. In 95-ORD-47, we reasoned:
KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
Although this principle applies for duplicative requests to the same agency, the logic does not apply when the "duplicative" request is directed to a different agency. In this case, the agency that supplied the order granting shock probation was LSCC, not Probation & Parole. Probation & Parole cannot claim that this request is duplicative as to the order granting shock probation, and the argument against providing the record fails.
Request for Order Revoking Shock Probation . In regards to Appellant's request for a copy of the "order on motion to revoke probation dated 9/28/2012," we are unable to determine that a violation of the Act exists under the facts of this appeal. The agency's response of March 8, 2018, merely notes that Appellant attached a copy of the requested record to his request. The agency's response does not state that it has previously provided that particular record to Appellant, and so there is no clear argument that the record is duplicative. Because Appellant provided no proof that Probation & Parole received his request prior to the appeal, we cannot find that that agency violated the Act in failing to respond to his request before that time.
Ms. Barker argues that "[t]he appeal is premature and unperfected. KRS 61.880(2)(a) requires the person appealing the record request to 'forward to the Attorney General a copy of the written request and a copy of the written response denying inspection.'" She urged that this Office should not consider the appeal pursuant to its own regulation, 40 KAR 1:030, which states:
Section 1. Form. The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
Ms. Barker argues that the appeal is premature because it was filed before the response was due since the request was not received prior to the appeal, and that it is incomplete because it did not include the response provided to the inmate.
Under the circumstances presented, where the agency denies receipt of the original request, agencies commonly address the merits of the request, in the interest of efficiency, having received a copy of it attached to the notification of the appeal. See 11-ORD-012. However, the response from Ms. Barker does not address the merits of this particular request. Because Probation & Parole did not choose to address the merits of Appellant's request in responding to his appeal, the record lacks adequate information for this office to make a conclusive determination regarding the accessibility of the records in dispute.
Unless Probation & Parole can articulate in a written response to Appellant a statutory basis for denying access to any existing records which are responsive to Appellant's requests, Probation & Parole should provide Appellant with copies of this record upon prepayment of a reasonable copying charge not to exceed ten cents per page. See 06-ORD-197.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.