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 Marion Adjustment Center (MAC) relative to the open records request of Tommy Baldwin violated the Open Records Act. For the reasons that follow, we find that the agency's response affirmatively advising him that the requested record did not exist was proper and did not constitute a violation of the Act.
In an undated letter, attached to his letter of appeal, addressed to Bruce M. McNeill, Business Manager, (MAC), Mr. Baldwin requested to inspect:
The Directive from C.C.A., Corporate Office that states that all fresh fruits and vegetables will no longer be sold in the inmate canteen.
In his letter of appeal to this office, Mr. Baldwin appeals the refusal of Mr. McNeill to allow him to inspect the record and the refusal of Mr. McNeill to answer his request.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Carolyn W. Mudd, Warden, MAC, provided this office with a response to the issues raised in Mr. Baldwin's appeal. In her response, Warden Mudd advised:
Business Manager Bruce McNeill nor I have ever received this request from inmate Tommy Baldwin # 143889. In regards to his request however, there is no such directive he is seeking a copy of.
Warden Mudd's letter to this office indicates that a copy of the response was sent to Mr. Baldwin.
We are asked to determine whether the actions of the MAC violated the Open Records Act. For the reasons that follow, we conclude that the actions of MAC did not constitute a violation of the Act.
We address first the agency's response advising Mr. Baldwin that no directive, such as he is seeking, exists. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. 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. Accordingly, the MAC's actions, in advising Mr. Baldwin that the record he was seeking did not exist, was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
Next, we address, Mr. Baldwin's contention that the agency refused to answer his request. In her response, Warden Mudd advised that neither she nor Mr. McNeill ever received the request from Mr. Baldwin. We have insufficient information to address this issue and, thus, make no finding in this regard. Obviously, an agency cannot respond to a request it does not receive. The agency may want to review its open records policies and procedures to determine whether the failure to receive Mr. Baldwin's request was due to any action on the part of the agency or Mr. Baldwin.
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.
Tommy Baldwin, # 143889-E-209-BMarion Adjustment Center95 Raywick RoadSt. Mary, KY 40063
Bruce M. McNeill, Business ManagerMarion Adjustment Center95 Raywick RoadSt. Mary, KY 40063
Mike MoultonAttorney at Law58 Public SquareElizabethtown, KY 42701