Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Fulton County Detention Center in response to Joseph Datillo's requests for copies of his grievance memorandums, medical records, and a videotape of an accident he had at the jail, violated the Open Records Act. We conclude the Center's actions did not violate the Act.
After receipt of Notification and a copy of Mr. Datillo's letter of appeal, both the Center and the Fulton County Attorney provided this office with a response to the issues on appeal. Both advised that Mr. Datillo had been provided copies of his grievance memorandums and medical records, but a copy of the requested videotape could not be provided as it no longer existed. By letter received by this office on March 4, 2002, Jim Williams, Chief Deputy of the Center, advised this office:
In response to the appeal for open records filed by Joseph Datillo, we offer the following reply. We have on two different occasions sent all memorandums and medical records that we have on Datillo. Yesterday we also sent Mr. Chandler and Datillo copies again of all memorandums and medical records that Datillo requested. The tape that Datillo is requesting does not exist. Tapes are recorded over weekly if there is not a request within the week the tape was made. We have been more than cooperative with inmate Datillo. We have bore all the expense of the copies and postage. If you have any questions feel free to contact us at any time.
Addressing first the issue of access to the grievance memorandums and medical records, the Center has advised that those records have been made available to Mr. Datillo. 40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Datillo has been provided copies of these records, the appeal is moot as to them and no decision will be rendered.
Addressing next the request for the videotape, the Center has advised that the videotape no longer exists. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
In addition, the Department of Libraries and Archives has advised that the requested videotape is currently not a scheduled record subject to a retention schedule. Absent an applicable retention period, no impropriety would result from recycling the tapes for further use. 01-ORD-74. Accordingly, under these facts, we find 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.