Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Kentucky State Reformatory (KSR) violated the Open Records Act relative to the open records request of Alaric Moore for:
two (#2) copies of nurse Griffins Statement, the statement that your charge nurse Hesse (4-12) said that she (Griffin) made. Charge nurse Hesse, RN (4-12) stated in her statement dated: June 19th, 2000, "that such statement was made". Again, I am requesting nurse Griffins written statement concerning me.
In his letter of appeal, Mr. Alaric stated that it had been nine working days since he had submitted his request to KSR and he had yet to receive a response. He indicated in his request that he had enclosed a check of fifty-four cents for the documents.
After receipt of the letter of appeal, we sent a "Notification of Receipt of Open Records Appeal" to KSR and enclosed a copy of Mr. Moore's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Jennifer Hatcher, Staff Attorney, Department of Corrections, on behalf of KSR, provided this office with a response to the issues raised in the appeal. In her response, Ms. Hatcher stated:
I have reviewed the above-referenced appeal, as well as a copy of Alaric Moore's request that is the subject of his appeal. After contacting the staff at both the Kentucky State Reformatory (KSR) where Mr. Moore states he sent his request and the Kentucky State Penitentiary (KSP) where he is currently housed, it appears that neither institution received his request.
The request form indicates that Mr. Moore directed his request to Deputy Warden Jim Stephens at the Kentucky State Reformatory. All open records requests that Deputy Warden receives are recorded in a log maintained by his secretary, Martha Smith. This log indicates the date the request is received, its disposition of the request, and the date on which the Deputy Warden responds to it. Ms. Smith checked the open records request log and there is no entry regarding Mr. Moore's request. Additionally, Marc Abelove, an offender records specialist who answers the open records requests at KSR, informed me that he has no record of this request. After reviewing a copy of Mr. Moore's request, Mr. Abelove stated that he would not have answered the request as it pertains to medical records. He indicated that he would forward this type of request to medical records.
An inmate's medical records are kept at the institution where he is incarcerated. Sherrie Hale is the custodian on inmates' medical records at KSP, and she answers the open records requests regarding medical records. Ms. Hale searched Mr. Moore's medical file and there is no record of his request. A copy of an inmate's open records request that involves medical records is placed in his medical file. Ms. Hale reviewed a copy of Mr. Moore's request and, in response, she stated that the documents he requests do not exist. She also stated that there is no reference in the nurses' notes in Mr. Moore's medical file that pertain to the date specified in his request. Nancy Duncan, the custodian of offender records at KSP, reviewed Mr. Moore's inmate file and stated that she does not have any record of this request. Additionally, Michelle Herring, the custodian of the inmate accounts records, verified that as of March 14, 2001, the fifty-four cent check issued on Mr. Moore's account has not been presented for payment.
The Department maintains that neither the staff at KSR or KSP received Mr. Moore's request. However, in connection with this appeal, the Department has reviewed his request and respectfully submits that the documents that Mr. Moore requests do not exist.
Along with her response, Ms. Hatcher attached sworn affidavits from Martha Smith, Marc Abelove, and Michelle Herring in support of statements attributed to each as set forth in the response.
We are asked to determine whether these actions of the KSR and the KSP relative to Mr. Moore's request violated the Open Records Act. For the reasons that follow, we conclude that there was no violation of the Act.
The response of Ms. Hatcher indicates that thorough searches were made at both institutions for Mr. Moore's request and, as noted above, neither had any record that the request had ever been received. This presents a factual issue. Under the facts presented, we find no violation of the Open Records Act as there is no evidence that either institution received the request and failed to respond to it.
Addressing the substantive issue, Ms. Hatcher's response indicates that, after receipt of a copy of Mr. Moore's request which he enclosed with his letter of appeal, the Department conducted a thorough search for the requested documents and concluded that no such records exist.
Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. We find that under these facts there was no violation of 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.
Distributed to:
Alaric Moore #109087Kentucky State PenitentiaryP.O. Box 128Eddyville, KY 42038-0128
Jennifer HatcherStaff AttorneyDepartment of Corrections2439 Old Lawrenceburg Road.Frankfort, KY 40602
Teresa St. ClairOpen Records CoordinatorKentucky State Reformatory3001 West Highway 146LaGrange, KY 40032