NOT TO BE PUBLISHED
96-ORD-48
March 4, 1996
In re: Chauncey Turner/Kentucky State Reformatory
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Kentucky State Reformatory's handling of Chauncey Turner's December 15, 1995, request for a copy of records relating to funds which are missing from his inmate account. Those records are identified as:
1) Cashed, cancelled or voided check #6843 from inmate account of Chauncey Turner #112068 issued on 10-11-95 in the amount of $55.00; 2) certified mail receipts showing check #6843 was mailed from KSR to Great Financial Bank; 3) chief clerk log book records showing dates check #6843 was mail from, and received back into, KSR chief clerk's office; and 4) any and all records showing dates check #6843 monies was placed back on inmate account (if any exist).
In his letter of appeal, which is dated January 23, 1996, but was not received by this office until February 2, 1996, Mr. Turner states that KSR has not responded to his request. This failure to respond is tantamount, in his view, to a refusal to honor his request.
Responding to the notification of appeal issued by this office, on February 6, 1996, Kenneth Vaughan, Open Records Coordinator at KSR, advised us that the correctional facility did not receive Mr. Turner's request in the period from December 5, 1995 through December 21, 1995. In support, Mr. Vaughan attached a copy of the KSR Open Records Request Log confirming that no request was received from Mr. Turner during this period. Mr. Vaughan also attached a statement from Pat Rose, Accountant Supervisor, in which she recounted the steps she had taken in response to Mr. Turner's request that the missing check be located. Neither Mr. Vaughan's nor Ms. Rose's memorandum was sent to Mr. Turner.
On February 12, 1996, this office remanded Mr. Turner's request to KSR with directions that the facility respond within three business days. On February 15, Mr. Vaughan issued a response to Mr. Turner in which he advised:
The Chief Clerk's Office requested a stop payment on Check No. 6843 on January 16, 1996. The actual check is not located at Kentucky State Reformatory but may be requested from the Bank of Oldham County, 515 South First Street, LaGrange, KY 40031.
The envelope with Check No. 6843 enclosed was sent through regular U.S. mail. In checking the records in the mailroom, no request or payment was made for this to be sent certified mail.
Attached is a copy of the outstanding checks log maintained by the Chief Clerk's Office. All transactions not pertaining to Check No. 6843 have been omitted to protect the confidentiality of those entries.
The attached printout shows the stop payment on Check No. 6843 was posted on January 16, 1996 and the transfer recorded on January 22, 1996. Both was in the amount of $55.00. It is the responsibility of the Chief Clerk's Office at Otter Creek Correctional Complex, P. O. Box 500, Wheelwright, KY 41669-0500 to provide you a receipt of this deposit into your account.
Mr. Vaughan urged Mr. Turner to submit all future open records requests to his office.
We are asked to determine if Kentucky State Reformatory violated provisions of the Open Records Act in responding to Mr. Turner's request. For the reasons set forth below, we conclude that KSR substantially complied with the Act in its response.
KRS 61.880(1) sets forth the procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although there is a dispute about whether KSR received Mr. Turner's request prior to the date on which he filed his appeal with the Attorney General, it is undisputed that the facility moved quickly to act on the request once it received notification of appeal from this office. Its February 15, 1996, response is entirely consistent with the procedural requirements of the Open Records Act insofar as Mr. Vaughan advised Mr. Turner where he should address his request for records which are not in KSR's custody per KRS 61.872(4) [1]; advised him that certain records cannot be located, and described the efforts KSR made to locate those records per 95-ORD-96 [2]; and furnished him with copies of the remaining records he requested per KRS 61.872(3)(b) [3]. While it is certainly true that KSR's response exceeded the three day statutory deadline by several days, this delay was occasioned not by neglect, but by its failure to receive Mr. Turner's request in the open records coordinator's office. In all substantive respects, KSR's response was consistent with 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
A. B. CHANDLER III
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/95
Distributed to:
Kenneth Vaughan
3001 West Highway 146
LaGrange KY 40032
Chauncey Turner
Otter Creek Correctional Center
P. O. Box 500
Wheelwright KY 41669
[1] 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.
[2] In 95-ORD-96, this office articulated a standard by which to measure the adequacy of an agency's search for a record. At page 7 of that decision, we held that an agency must make a good faith effort to conduct a search “using methods which can reasonably be expected to produce the records requested.” Citing In re Agent Orange Products Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). Based on Mr. Vaughan's description of the search method used to locate the missing certified mail receipts, we believe KSR's search was adequate.
[3] KRS 61.872(3)(b) provides that a person may inspect public records:By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.