Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the responses of the U. S. Corrections Corporation and the Kentucky Department of Corrections to Mr. Rasdon's April 1, 1997 open records request to inspect a copy of the Interstate Agreement on Detainers, Form IX, from his inmate institutional file.
By letter dated April 3, 1997, Ms. Lisa Hall, Open Records Coordinator, Lee Adjustment Center, responded to Mr. Rasdon's request, stating:
After reviewing your file, I was unable to find a Form IX. According to a letter that Michelle Nickell wrote to you on September 18, 1996 you received a copy of a form that gives you the same information that a Form IX contains. You received a copy of the disposition on your charges in Indiana on January 12, 1996.
I am unable to give you a copy of something that does not exist in your file.
In his letter of appeal, Mr. Rasdon requests this office to compel the Department of Corrections to produce a copy of the Form IX "even if it entails acquiring another copy from the Clark County Indiana Prosecutor's Office located in Jeffersonville, Indiana."
On April 6, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the Eastern Kentucky Correctional Complex and the Department of Corrections and enclosed a copy of Mr. Rasdon's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, provided this office with a response to the issues raised in the letter of appeal.
In her response, Ms. Biggs states in part:
I have reviewed Mr. Rasdon's letter of appeal and have consulted Institutional Records staff, as well as the Central Office Offender Records file. According to institutional staff, a copy of the Form IX does not appear in the inmate's institutional file. Forms I through VII are contained in his institutional file, but Form IX is absent. I pulled the Central Office file and located the document which Mr. Rasdon claims was executed by the Deputy Prosecutor. (Attached as Exhibit 1) I also located an "Agreement on Detainers" which included Forms I through VII and an incomplete Form IX. (Attached as Exhibit 2) I have been informed that if a Form IX is not completed, it is not included in the institutional file. According to other attorneys in our office, a Form IX is filled out and forwarded to the appropriate authority for completion and signature; however, we cannot legally force the other state to complete said Form. In this case, Indiana chose not to execute the Form IX, but sent a disposition of charges and the Judgment. The responses to Mr. Rasdon's request were correct in this respect, as the institution could not produce what it did not have.
We are asked to determine whether the responses of the agencies were consistent with the Open Records Act. For the reasons which follow, we conclude that they were.
This office has consistently recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. 93-ORD-51. In general, it is not our duty to investigate in order to locate a document which the requesting party maintains exists, but which the public agency states does not exist. 94-ORD-140.
In her response, Ms. Biggs stated that a copy of the requested Form IX does not appear in Mr. Rasdon's institutional files. She further explained normal agency procedure regarding Form IX. If the other state fails to complete Form IX, it is not included in an inmate's instituitonal file. In the instant case, the other state, Indiana, chose to send a disposition of charges and the Judgment, rather than an executed Form IX.
This office has no reason to doubt the agencies's responses that the document requested is not in Mr. Rasdon's institutional files. Accordingly, the responses were proper and consistent with provisions of the Open Records Act insofar as the agency 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 who does or may have the document in question, if such information is known to the agency. KRS 61.872 (4). If Mr. Rasdon does not already have the address of the Clark County Indiana Prosecutor's Office in Jeffersonville, Indiana, it should be made available to him, so that he may inquire as to whether that agency has a copy of the document he seeks.
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.