Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in denying Scott LeCates's August 5, 1998, request for "any and all memos concerning union or other employee organizational meetings taking place within a Kentucky corrections facility." Mr. LeCates is an education field representative employed by the AFT-Kentucky. Based on the written record before us, we find that the Department did not violate the Act, but instead complied in all material respects with the provisions of KRS 61.870 to 61.884.
On behalf of the Department of Corrections, Tamela Biggs, staff attorney, responded to Mr. LeCates's request on August 10, 1998, advising him that the Department could not honor his request because it did not "have any memos regarding union meetings within a correctional facility or any correspondence denying unions the right to visit." It was the Department's position that it could not provide what it does not have.
In his letter of appeal, Mr. LeCates indicates that on August 5, Ron Claxton, Director of the Eddyville Education Center, told Mr. LeCates that he had been given the memo, but would not send it to him. On the same day, Mr. LeCates notes, Al Kelty, KCTCS--Corrections personnel liaison, advised him that "this memo was written by Wendal McCourt of Corrections Education." Ms. Biggs responds:
According to Mr. McCourt, all of the institutional teachers who were under the KCTCS (Kentucky Community and Technical College System) system [sic] recently became public employees. Following this change in status, Mr. LeCates contacted Mr. Al Kealty to set up appointments to meet witih the Department's academic and technical teachers to "talk about insurance." Mr. Claxton informed Mr. LeCates that he would not be permitted in the institution, but did not refer to any memorandum from Mr. McCourt. Mr. McCourt verbally informed Mr. LeCates that union representatives were not permitted inside the institution's perimeter. Mr. LeCates met with teachers at Blackburn Correctional Complex to discuss union membership after his conversation with Mr. McCourt. Mr. LeCates contacted Ms. Margaret Moore, Principal at Kentucky State Reformatory to ask if he could send her union materials to copy on state time and equipment to distribute to the teachers. She said no.
Ms. Biggs reiterates that Mr. McCourt did not draft any memorandum regarding AFT's access to the institutional grounds, and "the Department cannot produce what it does not have." We agree.
This office has consistently held that a public agency cannot afford a requester access to documents which do not exist or which it does not have in its custody. In general, it is not our duty to investigate in order to locate documents which the requester believes exist, but which the public agency states do not exist. The General Assembly has recognized, at KRS 61.8715, that there is "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records." Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Apparently there were no memoranda generated by Mr. McCourt or others, which are responsive to Mr. LeCates's request. The questions presented in this appeal are factual, and not legal, in nature.
Given our limited role, we are simply unable to resolve the factual dispute between Mr. LeCates and the Department of Corrections relative to the existence or nonexistence of memoranda which are responsive to his request.
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.