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 Blackburn Correctional Complex violated the Open Records Act in responding to Jeffrey A. Guelda's June 28, 1999, request for a copy of the response to grievance number 2536, which he filed on March 31, 1999, or "the status thereof." For the reasons that follow, we find that although Blackburn's response contained a misstatement of the law, that misstatement did not materially effect its denial of Mr. Guelda's request on the basis that no responsive record exists, or the propriety of that denial. We affirm its denial of the request.
In a letter to Mr. Guelda dated July 2, 1999, Betty Ann Walker, Open Records Coordinator at Blackburn, indicated that his grievance "was declared moot due to the time limit expiring on [his] appeal to the Commissioner." Additionally, Ms. Walker advised Mr. Guelda that his open records requests must be "submitted on the proper form (available at all institutions) with the appropriate funds." It is our opinion that Ms. Walker was in error in advising Mr. Guelda that he was required to use the institution's open records forms. Nevertheless, her denial of his request on the basis that no responsive record exists was consistent with past opinions of this office.
In a supplemental response addressed to this office, Department of Corrections Staff Attorney Tamela Biggs acknowledged Blackburn's error. She explained:
While Blackburn's response answers the question of the status of the grievance, the institution may not require that a specific form be used. 96-ORD-19, at p. 2. "While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records." Each institution provides a form that may be used to request to inspect or obtain copies of non-exempt public records. While the Department may prefer that an inmate utilize this form, it cannot require the inmate to do so. So long as the inmate's written request provides his name, number, signature and a description of the records requested, the request should be honored.
Ms. Biggs noted that use of the form provided by the institution may expedite receipt on nonexempt public records, but conceded that it was not mandatory. We believe that Ms. Biggs's analysis represents a correct interpretation of the Open Records Law. We urge Blackburn Correctional Complex to implement the policies which she describes.
With respect to the record in dispute, the institution's response to Mr. Guelda's grievance, Ms. Walker properly advised him that no such record exists. She explained that his grievance had been "declared moot" because he had failed to appeal to the commissioner. From this, we can infer that no response was prepared. The Attorney General has long recognized that a public agency cannot provide access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-203; 97-ORD-17; 98-ORD-80. We have also recognized that it is not our duty to conduct an investigation to determine the location of missing or nonexistent documents. OAG 86-35.
Nevertheless, in 97-ORD-116 this office observed:
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records .
97-ORD-116, p. 1, 2 (emphasis added). Ms. Walker offered a reasonable explanation for the nonexistence of a response to Mr. Guelda's grievance. She stated that his grievance had been mooted due to his inaction in prosecuting it. We find no error in this response. 94-ORD-140 (affirming Ohio County Sheriff's Department's denial of request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation); 98-ORD-80 (affirming Department for Libraries and Archives denial of request for parole certificate on the basis the record was not in its custody when Libraries and Archives explained that parole certificates are not included in the retention schedule for the Parole Board because they are not retained as separate documents by the Board but are issued to the inmate who is paroled).
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.