Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
This matter comes to the Attorney General on appeal from the actions of the Eastern Kentucky Correctional Complex relative to Herman C. Tapp's requests to inspect certain documents.
In a request, dated September 29, 1993, Mr. Tapp asked to inspect, "The written complaint which spawned the investigation of child abuse involving me and my children. It is dated on or about October 22, 1992."
On behalf of the Eastern Kentucky Correctional Complex, Ms. Martha Prater advised Mr. Tapp in writing on September 30, 1993 that, "There is no such letter in your file."
In another request, dated September 29, 1993, Mr. Tapp asked to inspect, "letter(s) or memoranda from Senior Captain Smith or other EKCC staff regarding restrictions on my visitation which were issued after December 21, 1992, to and including the current date."
Ms. Martha Prater advised Mr. Tapp in writing on September 30, 1993 as follows relative to that request: "Copies attached." Apparently copies of numerous documents were included in the attachments.
In his letter of appeal to this office Mr. Tapp refers to his requests to inspect documents and sets forth various events and circumstances which culminated in his loss of visitation rights.
Under the Open Records Act (KRS 61.870 to KRS 61.884), the function of this office in regard to an appeal is to issue a written decision stating whether the public agency violated the Act. See KRS 61.880(2). We, therefore, have no authority to get involved in any dispute or disagreement between Mr. Tapp and the Correctional Complex pertaining to visitation rights.
KRS 61.872 sets forth, generally, the public's right to inspect records of a public agency. In any request to inspect records there are always two basic questions: Are the requested records in the custody of the public agency and, if they are, are those records subject to public inspection?
As noted in 93-ORD-51, copy enclosed, at page four, we said that a public agency cannot afford a requestor access to a document which does not exist or which it does not have in its possession or custody. In addition, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.
This office has no reason to doubt the public agency's statement that the document requested is not in the requesting party's file. The response of the public agency to the requesting party was proper and consistent with the provisions and requirements of the Open Records Act as it cannot make available for inspection a document which it does not have in its possession or custody. The only additional duty of the public agency in such a situation is to advise the requesting party as to who does have the document in question if such information is known to the agency. See KRS 61.872(4).
In connection with Mr. Tapp's request to inspect documents relative to loss of visitation rights, he was furnished with certain documents. While his letter of appeal discusses various aspects of the process which resulted in his loss of visitation rights, he does not present any issues which can be decided in an appeal under the Open Records Act. There is no allegation that a particular document has been withheld from his inspection. The response of the public agency was brief and somewhat nonspecific but we cannot conclude that it was erroneous under the circumstances associated with this appeal.
Mr. Tapp or the Eastern Kentucky Correctional Complex may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against Mr. Tapp or the Eastern Kentucky Correctional Complex pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.