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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 Laurel County Detention Center's actions relative to John S. Johnson's January 17, 1998 open records request for a "certified copy of the Jail log or any record which reflect his departure time to the Leslie Circuit Court on the morning of July 17, 1993."

In his letter of appeal, dated February 27, 1998, Mr. Johnson stated that, as of that date, he had yet to receive a response from the Laurel County Detention Center.

After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Laurel County Detention Center and enclosed a copy of Mr. Johnson's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Elmer Cunnagin, Jr., Laurel County Attorney, on behalf of the Detention Center, provided this office with a copy of the Detention Center's response, dated March 6, 1998, to Mr. Johnson's request.

In his response, Mr. Cunnagin explained, in relevant part:

Ed Parsley, Jailer has made a diligent search of the records of the Laurel County Detention Center and has not been able to locate any records which contain the information that you have requested.

We are asked to determine whether the response of the Detention Center was consistent with the Open Records Act. For the reasons which follow, we conclude that the agency's response, although procedurally deficient, was substantively consistent with the Act.

We begin by noting the Detention Center's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.880(1) provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

The Detention Center's response to Mr. Johnson's January 17, 1998 request was issued on March 6, 1998, over a month and a half after the statutory deadline. This was a procedural violation of KRS 61.880(1). The Detention Center is urged to review the procedural requirements of KRS 61.880(1) to ensure that future responses conform to the Open Records Act.

Turning to the substantive issue in this appeal, this office has consistently recognized that a public agency cannot provide a requester access to a record or document that it does not have or which does not exist. 96-ORD-190; 96-ORD-163. In his response to Mr. Johnson, Mr. Cunnagin explained that after a diligent search of the Detention Center records by the jailer, none were found which contained the information Mr. Johnson was seeking.

Accordingly, we conclude that the response of the Detention Center that it could not provide the requested records because it had no such records was consistent with the Open Records Act and prior decisions of this office.

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.

LLM Summary
The decision addresses an appeal concerning the Laurel County Detention Center's response to an open records request. The requestor, John S. Johnson, did not receive the requested records or a timely response. The Detention Center later responded that no records were found after a diligent search. The Attorney General's decision found that while the Detention Center's response was procedurally deficient due to delay, it was substantively consistent with the Open Records Act because the agency cannot provide records that do not exist. The decision follows previous opinions that support this principle.
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Requested By:
John S. Johnson
Agency:
Laurel County Detention Center
Type:
Open Records Decision
Lexis Citation:
1998 Ky. AG LEXIS 41
Forward Citations:
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