NOT TO BE PUBLISHED

96-ORD-140

June 19, 1996

In re: Joseph R. Myers/Commonwealth of Kentucky, Parole Board

OPEN RECORDS DECISION

This matter comes to the Attorney General as an appeal by Joseph R. Myers, Esq., in connection with his request to the Parole Board of the Commonwealth of Kentucky for access to a particular document.

In a letter to the Chairperson of the Parole Board, dated May 8, 1996, Mr. Myers requested a copy of the electronic record of the meeting of the Parole Board held on February 23, 1996, at which the Parole Board voted to rescind the parole of Donnell Flippins. In support of his request Mr. Myers cited KRS 439.330(4) and the provisions of the Open Records Act.

Mr. Myers sent this office a letter, dated May 22, 1996, stating that he still had not received a response from the Parole Board relative to his request. He asked that this office review the request and issue a written decision as to whether the Parole Board violated the provisions of the Open Records Act.

The Parole Board advised this office in a letter dated May 29, 1996, that its chairperson sent Mr. Myers a letter, dated May 23, 1996, advising him as follows:

The Parole Board does not meet to discuss recission of parole. The case is circulated and voted on along with other cases such as: Final Discharges; Early; Reconsiderations; Early Medical; and Warrant Requests.

There is, therefore, no tape since there was no meeting.

KRS 439.330(4), a part of the statutory provisions pertaining to the duties of the Parole Board, states in part as follows:

The board shall keep a record of its acts, an electronic record of its meetings, and the reasons for denying parole to inmates. These records shall be public records in accordance with KRS 61.870 to 61.884.

The statute clearly mandates that the Parole Board keep an electronic record of its meetings and that such a record is a public record under the Open Records Act. The Parole Board responded that there is no electronic record of the proceeding relative to the parole recission because there was no meeting pertaining to that matter. Obviously a public agency cannot make available for inspection a document which it does not have or which does not exist.

This office has a precise and narrow function in connection with an appeal presented to it under the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether that agency violated the terms and provisions of the Open Records Act. The Attorney General's basic responsibility and obligation is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the provisions of KRS 61.870 to KRS 61.884.

Thus, we cannot, within the confines of an appeal under the Open Records Act, attempt to resolve matters pertaining to the proper operation and functioning of the Parole Board, generally, nor can we consider matters concerning the interpretation and application of the Open Meetings Act (KRS 61.805 through KRS 61.850). Whether a meeting of the Parole Board was necessary for it to take action on a matter is an issue that cannot be decided in this appeal.

An issue that can be decided on this appeal under the Open Records Act is the matter of the Parole Board's response to the request it received from Mr. Myers.

KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. Basically, the public agency is required to respond in writing within three business days after the receipt of the request.

This office has stated on numerous occasions that the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents. Any public agency has the duty to respond to the request in writing within the statutorily mandated time frame. The agency has the burden of justifying the withholding of a record by references to the appropriate exception to public inspection and by briefly explaining how that exception applies to the particular document withheld. See 95-ORD-159 and 95-ORD-114.

It is, therefore, the decision of the Attorney General that the Parole Board violated the Open Records Act to the extent that it did not furnish a timely written response to the request for documents but it did not violate the Open Records Act by not providing a copy of the electronic record of the meeting relative to the parole recission as there was no meeting pertaining to that matter and thus no record of the meeting.

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 filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.

A. B. CHANDLER III

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

sjj/626

Copies of this decision

have been delivered to:

Joseph R. Myers, Esq.

Assistant Public Advocate

Department of Public Advocacy

Northpoint Training Center

P.O. Box 479

Burgin, Kentucky 40310

Helen Howard-Hughes, Chairperson

Kentucky Parole Board

State Office Building, Fifth Floor

Frankfort, Kentucky 40601