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 is before the Attorney General on appeal from the actions of the Fayette County Detention Center relative to the open records request of Michael Gideon, Sr., dated November 19, 1999, for copies of:
1. Medical Records relating to him;
2. All grievances filed by Mr. Gideon;
3. All jail tapes for the night of October 9, 1999 around 2230 or 2300 on the sixth floor and near the large elevator; and
4. The incident report written on October 9, 1999.
By letter dated November 23, 1999, Larry Hornsby, Corporate Counsel, responding on behalf of the Detention Center, advised Mr. Gideon that the agency was in the process of gathering the requested records and he would receive a letter no later than Wednesday, December 1, 1999, informing him if any of the requested records would be made available to him of if any were exempt from inspection under the Open Records Act. Addressing the request for the videotapes, Mr. Hornsby informed Mr. Rashad that no videotapes existed which met his request. He explained that, although cameras monitor the areas mentioned in his request, the areas are under video surveillance only and no tapes are made of the activities witnessed by the cameras.
After receipt of Mr. Gideon's letter of appeal, Glenda Humphrey George, Corporate Counsel, Lexington Fayette Urban County Government, provided this office with a response, on behalf of the Detention Center, to the issues raised in the appeal. Ms. George advised that item numbers 1, 2, and 4 would be made available for Mr. Gideon's inspection. With respect to item number 3, Ms. George indicated that Mr. Gideon had been informed that the videotape he requested did not exist.
Since items number 1, 2, and 4 will be made available for Mr. Gideon's inspection, the appeal is moot as to those records. 40 KAR 1:030, Section 6.
As to item number 4, the Detention Center advised Mr. Gideon that the requested videotape did not exist. This office has consistently recognized that a public agency cannot provide a requester access to a record or document which it does not have or which does not exist. 98-ORD-35; 96-ORD-190; 96-ORD-163. Accordingly, we conclude that the response of the Detention Center that it could not provide the requested record because the record did not exist 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.