Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert 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 actions of the Department of Corrections relative to Harry M. Chapman's open records request for a copy of the minutes of his Parole Board hearing.
By letter dated October 19, 1997, Mr. Chapman submitted an open records request to the Chair of the Parole Board asking for copies of the audio tapes of his June 26, 1997 parole hearing, his July 24, 1997 parole hearing, and a copy of the minutes of the vote wherein the parole board chose to rescind his parole after having granted it.
On October 21, 1997, Mr. Chapman was notified of the fee for copying the requested tapes. The tapes were subsequently copied and mailed to Mr. Chapman. On the same date, Mr. Chapman was also notified that his request for the minutes of the parole board hearing had been forwarded to Offender Records for response. On October 27, 1997, Karen DeFew Cronen, Offender Records, responded by informing Mr. Chapman that the copy of the minutes of the meeting and written reasons for rescinding his parole consisted of two pages, which would be mailed to him upon receipt of the copying fee of $ .20.
In his letter of appeal, Mr. Chapman stated that the Department did not provide him with a copy of the minutes but instead sent a copy of the "In-Office Voting Sheet" of that hearing. He appeals the failure of the Department to send him a copy of the requested minutes. Mr. Chapman also claimed that it appeared that a portion of the tape of the July 24, 1997 hearing was missing and appeals the failure to receive a complete tape.
After receipt of the letter of appeal, we sent a "Notification of Receipt of Open Records Appeal" to the Department and enclosed a copy Mr. Chapman's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Office of General Counsel, provided this office and Mr. Chapman with a response to the issues raised in the appeal. In her response, Ms. Biggs explained that staff at Offender Records had apparently misunderstood his request and sent him a copy of the "In-Office Voting Sheet" and a copy of the written reasons for rescinding his parole.
Ms. Biggs further stated that after reviewing Mr. Chapman's Central Office Offender Records file and checking with the Parole Board, it was determined that there was no "copy of the minutes" of the meeting in which it was decided to reconsider his parole. Ms. Biggs advised that after the Board meets with individuals and discusses each case and the reasons for its decision, a listing is made of the inmates which were seen on "x" date. This listing then states the decision made by the Board, such as "approved" or "rescinded." However, written "minutes" regarding the Parole Board decisions are not kept.
We are asked to determine whether the response of the Department was consistent with the Open Records Act. For the reason which follows, we conclude that the response was proper and in accord with the Act and prior opinions of this office.
The Department, in its response to the letter of appeal, explained that its original response stating it would send a copy of the minutes was in error due to a misunderstanding by staff of the precise document being requested. The Department further explained that no written minutes of its meetings are kept by the Parole Board and therefore could not provide a record it does not have.
This office has long recognized that a public agency cannot afford a requester access to a record which it does not have or which does not exist. 97-ORD-103; OAG 83-111. Accordingly, we find the Department's response that it could not provide a copy of the requested record on the ground that no such written record exists, was proper and consistent with provisions of the Open Records Act.
Addressing Mr. Chapman's second claim that he believed that a portion of the July 24, 1997 tape was missing, Ms. Biggs has informed this office that another complete copy of the July 24, 1997 hearing has been made from the master tape and sent to Mr. Chapman.
40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since another copy of the tape has been provided Mr. Chapman, his appeal as to this issue is moot and no decision on this issue will be rendered.
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.