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 Carroll County Detention Center, in responding to the August 24, 2001 open records request of John Todd Kemper for copies of his medical treatment records from on or about 3/9/98 to date, violated the Open Records Act. For the reasons that follow, we conclude they did not.
After receipt of notification of the appeal and a copy of Mr. Kemper's letter of appeal, Michael W. Humphrey, Jailer, Carroll County Detention Center, by letter dated September 18, 2001, provided this office with a response to the issues raised in the appeal. In his response, Mr. Humphrey advised that Mr. Kemper was not medically treated at the Center and, thus, there were no medical records there. Enclosed with his response were (1) a statement by Karen Wilson, RN, that she could find no record of Mr. Kemper being seen by the nurses or doctor at the facility; (2) statement by Mr. Humphrey that he had called Comp Care/Northkey Mental Health and they showed no record of seeing Mr. Kemper at the Detention Center; (3) computer printout of Inmate Medical Form for the date 3/9/98, in which Mr. Kemper reported being under no medication; and (4) copy of Mr. Kemper's "Release" dated 1/8/99. Copies of these enclosures are attached.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or cannot be located. 98-ORD-200. The Detention Center's response indicates a diligent search for Mr. Kemper's medical records was made and none were found. Obviously an agency cannot provide copies of records it does not have or which do not exist. 98-ORD-200. Accordingly, we find no violation of the Open Records Act by the Center.
KRS 197.025(7) requires that a jail or detention facility respond to an inmate's open records request in writing within five business days after receipt of the request. It is unclear whether the agency timely responded in writing to Mr. Kemper's August 14, 2001 request. To the extent its response was outside this five-day requirement, its response was procedurally deficient.
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.
John Todd Kemper, # 135696 D-1Green River Corrections ComplexP.O. Box 9300Central City, KY 42330-9300
Michael HumphreyCarroll County JailerCarroll County Detention Center800 Clay StreetCarrollton, KY 41008
James MonkCarroll County AttorneyP.O. Box 246Carrollton, KY 41008-0246