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 Frankfort Career Development Center violated the Open Records Act in its disposition of Donald Bottom's January 23, 2000, request to inspect:
Inmate request forms sent to Deputy Warden Wayne Dunn during the period of July 1, 1999 - December 31, 1999 that specifically allege that Don Bottom, CTO II failed to meet their casework needs or failed to spend appropriate time in dealing with their casework needs.
Mr. Bottom received no written response to his request, prompting him to initiate this open records appeal. For the reasons that follow, we conclude that the Frankfort Career Development Center violated the Open Records Act by failing to comply with the procedural guidelines for agency response set forth at KRS 61.880(1), and by failing to advise Mr. Bottom in writing, and in clear and direct terms, that no records exist which are responsive to his request.
Upon receipt of this office's notification of Mr. Bottom's open records appeal, Deputy Warden Dunn explained, in writing, the genesis of the appeal. He indicated that Mr. Bottom's records requests arose out of a year-end evaluation dispute. Mr. Bottoms, a classification and treatment officer at the center, objected to one area rating. He requested consideration of that rating, and any documents prepared by inmates during the evaluation period that might support the rating he received. In the course of the reconsideration meeting, Deputy Warden Dunn orally advised Mr. Bottom that no such documentation existed, and that the complaints he had received were never reduced to writing. Following that meeting, Mr. Bottom's rating was upgraded to an exceeds. Having heard no more about the matter of records access, and having upgraded Mr. Bottom's evaluation, Deputy Warden Dunn treated his request as moot. While the dispute relating to Mr. Bottom's evaluation may have been resolved by the decision to upgrade it, the corollary records access issue was not resolved by this action. Accordingly, we find that Frankfort Career Development Center's disposition of Mr. Bottom's request for records was procedurally and substantively deficient.
KRS 61.880(1) establishes guidelines for agency response to an open records request. That statute 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.
Mr. Bottom's January 23, 2000, records request was directed to the open records coordinator at the Center, and clearly identified as an "open records request." Deputy Warden Dunn's response to the notification of appeal issued by this office demonstrates that Eileen Burton, records specialist at the Center, received the request on January 26, 2000. Nevertheless, the Center failed to issue a written response to Mr. Bottom's request within three business days of receipt. Its omission constituted a procedural violation of the Open Records Act. The Center was not relieved of its duties under the Act by virtue of its decision to upgrade Mr. Bottom's evaluation, or by virtue of any informal, oral communications concerning the request.
In his February 17 response, Deputy Warden Dunn advised this office that no records exist that are responsive to Mr. Bottom's request because no inmate complaints were reduced to writing. It is precisely this kind of response that the Open Records Act mandates. In 97-ORD-161, the Attorney General examined the issue of how specific a public agency must be in responding to a request for nonexistent records. At pages 3 and 4 of that decision, we observed:
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting: KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
Having reviewed Mr. Bottom's requests for "inmate request forms sent to Dep. Warden Wayne Dunn during the period of July 1, 1999 - December 31, 1999 ...," and relating to his purported failure to meet the inmates' casework needs, we find that it was sufficiently specific to warrant an unequivocal written response that no responsive records exist. To the extent that it failed to give such a response, the Frankfort Career Development Center violated the Open Records Act.
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.