Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Green River Correctional Complex initially violated the Open Records Act by failing to make an adequate search for records or to explain its invocation of an exception, but ultimately did not violate the Act where some records did not exist and facility offered to provide existing records upon payment of copying fee.
Open Records Decision
The question presented in this appeal is whether the Green River Correctional Complex ("GRCC") violated the Open Records Act in its disposition of inmate Leonel Martinez's three requests dated June 6 and 7, 2019, for copies of a "segregation medical check from [M]ay 27[,] 2019"; a "patted down log from [M]ay 27[,] 2019[,] which included Leonel Martinez name"; and a "release order from segregation on [M]ay 28[,] 2019." For the reasons that follow, we find that GRCC initially violated the Act by failing to conduct a search for records or to explain its invocation of an exception to the Act, but ultimately complied with the Act by determining that some records did not exist and offering to provide those which existed.
GRCC received all three of Mr. Martinez's requests on June 10, 2019, and responded identically to each the same day by quoting KRS 61.878(1)(h) and stating: "This matter is currently under investigation and premature release of this information while this is an ongoing matter could harm the Dept. of Corrections to properly and thoroughly investigate this matter, therefore the requested records are exempt and your request is denied at this time." This office received Mr. Martinez's appeal on June 17, 2019.
In response to the appeal, on June 25, 2019, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, stated that she had "discussed this appeal with institutional staff and explained that [KRS 61.878(1)(h)] could not be used without an explanation of the harm that would be caused by the release of the record." Only after that discussion did GRCC actually conduct a search for the requested records.
A public agency responding to an open records request must "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. This entails "a search using methods which can reasonably be expected to produce the records requested." Id. (quoting
Cerveny v. Central Intelligence Agency , 445 F.Supp. 772, 775 (D. Col. 1978)). Failure to conduct an adequate search violates the Open Records Act. 17-ORD-200.
Furthermore, the invocation of an exception to open records under KRS 61.878(1) requires an "explanation of how the exception applies to the record withheld." KRS 61.880(1). In the case of KRS 61.878(1)(h), a public agency must explain how, "because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action."
City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 851 (Ky. 2013). By failing to provide such an explanation, or to conduct the required search for records, GRCC violated the Open Records Act in its initial response. 1
Upon conducting a search, GRCC discovered two pages of medical records responsive to Mr. Martinez's request for the "segregation medical check." The facility offered to provide these records to Mr. Martinez upon his completion of a money authorization form. GRCC notes, however, that Mr. Martinez currently has only 41 cents ($ 0.41) in his inmate account, enough for four pages of copies, but also has another pending open records appeal involving "three or four pages of records." If he chooses to pay for the two pages of medical records, as opposed to the other copies, this appeal is moot as to his first request. 2On the other hand, if Mr. Martinez should deplete his inmate account so that funds are no longer available for the medical records, GRCC need not provide the records without payment.
Friend v. Rees , 696 S.W.2d 325 (Ky. App. 1985). Accordingly, we find no violation of the Open Records Act in GRCC's final disposition of Mr. Martinez's first request.
As to the second request, GRCC states that "a pat down log does not exist." Rather, according to information from facility staff, "[a] tally of pat downs is made to determine the number performed, but there is no log with specific inmate names." Thus, no record matching the description in Mr. Martinez's second request was ever created.
Similarly, in regard to the third request, GRCC states, in accordance with information from staff, that "no order is created to release an inmate from the Restricted Housing Unit (RHU) formerly known as segregation." Thus, no record exists that is responsive to Mr. Martinez's request for a "release order from segregation."
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. Failure to determine and assert the nonexistence of a record, however, constitutes a procedural violation of the Act and does not discharge the agency's duty. 15-ORD-109; 10-ORD-137.
Although GRCC initially failed to determine whether responsive records existed, it has remedied this violation on appeal and given a legally sufficient response to all three requests. 3Therefore, while GRCC's initial responses to Mr. Martinez's requests procedurally violated the Act, we find no substantive violation in the facility's ultimate disposition of the requests.
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.
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