May 16, 1995

In re: David E. Stone/Department of Corrections


This matter comes to the Attorney General on appeal from the Department of Corrections' response to Mr. David E. Stone's open records request, made on the Department's "Request to Inspect Public Records" form, to inspect and for "(1) Copies of all 6 job placements. (2) And a copy of the 21 day fulow [sic] that was turned down. (3) And the sixty day home monitoring program that was also turned down."

Mr. Bruce G. Hewell, Institutional Parole Officer, on behalf of the Department of Corrections, responded to the request by completing the "Disposition" section of the Department's form. He stated, "[T]he information that you requested on 2-15-95 has not been classified as what is commonly referred to as 'open' or 'closed' records. I have been advised that you should contact Karen Cronen. Her address is: Offender Records, Department of Corrections, State Office Building, Frankfort, Ky. 40601. I am returning your inmate money transfer authorization dated 2-20-95."

By letter of appeal, dated February 23, 1995, Mr. Stone appealed the Department's response as being in violation of the Open Records Law. Specifically, he appeals the Department's refusal to allow him to inspect records in its possession.

By letter dated March 14, 1995, Mr. Hewell, on behalf of the Department, has supplied this office with additional documentation regarding Mr. Stone's appeal. Such additional documentation from the agency is authorized by KRS 61.880 and 40 KAR 1:030, Section 2. Mr. Hewell states the following regarding Mr. Stone's open records appeal:

Stone's request (attachment II) dated 1-15-95 and his Inmate Money Transfer Authorization (attachment III) dated 2-20-95 were delivered to my office on February 15, 1995. My supervisor advised me to refer Stone to Karen Cronen as I am not the custodian of the inmate's institutional file. I did this in my response to Stone's request which I sent to him on 2-22-95. It appears that Stone forwarded his appeal to your office on 2-23-95. Stone was discharged by parole from Western Kentucky Correctional Complex on March 9, 1995.

It is the decision of this office that the Department's response did not violate the Open Records Law.

KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

Mr. Hewell states that his supervisor advised him that, since he was not the custodian of Mr. Stone's institutional file, he should inform Mr. Stone that his request must be made to Ms. Karen Cronen, the custodian of the records. This Mr. Hewell did. He also provided Mr. Stone with the custodian's address. Accordingly, the Department acted properly under the Open Records Act as required by KRS 61.872(4).

Thus, at this point, Mr. Stone's appeal is premature. Under the Open Records Act, he must submit his request in writing to the designated custodian of the requested records, which in this case is Ms. Cronen, Offender Records, Department of Corrections, State Office Building, Frankfort, Kentucky 40601. We have no indication that Mr. Stone has done so nor has he provided this office with a copy of his request to the custodian of the records and a copy of her response as required by KRS 61.880(1). In this posture, Mr. Stone's appeal is procedurally defective and will not be considered by this office.

Mr. Stone may challenge this decision 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.






Distributed to:

Karen Cronen

Records Section Supervisor

Department of Corrections

State Office Building

Frankfort, Ky. 40601

Bruce G. Hewell

Institutional Parole Officer

Western Kentucky Correctional Complex

P.O. Box 5000

Eddyville, KY 42038-5000

David E. Stone #112074

M.S.U. T-3-15

Western Kentucky Correctional Complex

P.O. Box 5000

Eddyville, KY 42038-5000