NOT TO BE PUBLISHED

97-ORD-94

June 16, 1997

In re: Kenneth Sewell/Kentucky Parole Board

Open Records Decision

The question presented in this appeal is whether the Kentucky Parole Board violated the Open Records Act in responding to Kenneth Sewell's May 7, 1997, request for "written records and notes of each individual member granting and the reasons for denying parole, and the recording of [Mr. Sewell's] first parole hearing of January, 1997." For the following reasons, we find that the Board's response was procedurally deficient. We also find that although the Parole Board properly notified Mr. Sewell that it does not have custody of inmate files, to the extent that his request implicated those files, and furnished the name and location of the custodian of the files, the Board did not adequately respond to his request for written records and notes of the individual members of the Parole Board in their decision to deny his application for parole. With respect to his request for the tape of his January, 1997, parole hearing, we find that 97-ORD-82, in which the same issue was presented to this office by the same parties, is controlling.

As in 97-ORD-82, the Parole Board's response was untimely. KRS 61.880(1) requires public agencies to respond in writing to open records requests within three business days of receipt of the requests. This statutory period of limitation is not tolled by the pendency of an open records appeal involving the same parties. Mr. Sewell's request was sent by certified mail on May 7, 1997, and delivered on May 8, while the appeal which was resolved in 97-ORD-82 was still pending. On May 20, Parole Board chair Linda F. Frank responded to his request. Thus, eight days elapsed between the date of receipt of his request and the date on which the agency responded. We again urge the Parole Board to review KRS 61.880(1) to insure that its responses conform to the procedural requirements of the Open Records Act.

In his May 7 request, Mr. Sewell requested written records and notes made by Parole Board members in denying his application for parole in January, 1997. The Board responded that it does not have custody of inmates' files, and suggested that he contact the records custodian for the Corrections Cabinet. This response was consistent with KRS 61.872(4), which provides that if the person to whom the request is directed does not have custody or control of the records requested, he must notify the requester and furnish the name and location of the custodian of the requested records. The response did not, however, go far enough. The Parole Board did not affirmatively state that the members of the Parole Board created no records or notes at his parole hearing, or indicate whether a written record reflecting the reasons for the denial of his application for parole was generated.

While we are not familiar with the Board's records management policies, we assume that it maintains some written record of each hearing. If this is not the case, the Board should so state. If it is the case, the Board should advise Mr. Sewell if any responsive documents exist in that record. If all or any portion of the responsive records are exempt, the Board should articulate the statutory basis for denying access and explain its application to the records requested. See, for example, OAG 86-38, p. 3 (holding that "if the documents exist and inspection is denied, [the custodian] should list each document which [he] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection"); and OAG 90-26, p. 4 (holding that "if a record of which inspection is sought does not exist, the agency should specifically so indicate").

With respect to Mr. Sewell's request for a copy of the missing tape of his January parole hearing, and the Board's response that the tape has not been located but will be made available to him when, and if, it is, we find that 97-ORD-82 is controlling. In that decision, a copy of which is attached, we held that although it did not violate the Open Records Act in failing to provide him with a copy of the tape, insofar as it cannot copy what it does not have or cannot find, the Parole Board subverted the Act, within the meaning of KRS 61.880(4), by failing to establish effective controls over the creation, maintenance, and use of its records. It behooves neither Mr. Sewell nor the Parole Board to resurrect this issue. The Attorney General has spoken on the subject, pursuant to KRS 61.880(2). The Open Records Act does not authorize, or require, more.

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 L. Bensenhaver

Assistant Attorney General

#562

Distributed to:

Kenneth Sewell #123264

Northpoint Training Center

Box 479, Dorm 2

Burgin KY 40310

Linda F. Frank, Chair

Kentucky Parole Board

5^th Floor

State Office Building

Frankfort KY 40601

Richard Belding, Director

Public Records Division

Department of Libraries and Archives

300 Coffee Tree Road

Frankfort KY 40601