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 Stephen V. Gober addressed to MAC Warden Caroline Mudd for a copy of the following record: "[O]n appeal an appeal of a write up Nov. 22, 2003/1835 offense 4-7 Date and Time of Hearing Nov. 26, 2003/1605 I should have heard on or about January 7, 2004. Simply - stated, I need a copy of Appeal that was filed," violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
In his letter of appeal to this office, February 3, 2004, Mr. Gober asserted that MAC had failed to either respond to his request, dated January 14, 2004, or provide an explanation for denying him access to the requested record.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised, in relevant part:
Upon receipt of Mr. Gober's appeal, I contacted Warden Mudd's administrative secretary, Dotty Huff. Ms. Huff keeps a record of all open records requests received by Warden Mudd and prepares responses to these requests. Dotty Huff advised that Warden Mudd has not received Mr. Gober's request. Furthermore, upon further examination of Warden Mudd's records relative to appeals of MAC disciplinary actions, Ms. Huff discovered that Mr. Gober did not file an appeal of the disciplinary action taken 11/26/2003. Simply stated, the document Mr. Gober wishes to obtain does not exist. 1
?
Your office has consistently recognized that a public agency cannot afford a requester access to records it does not have or which do not exist. 93-ORD-134. In addition, there can be no violation of the Kentucky Open Records Act by an agency that has not received a request for public records. Finally, Mr. Gober's assumption that MAC violated KRS 61.880(1) is incorrect. Pursuant to KRS 197.025(7), upon receipt of a request for a record, the Department of Corrections has five (5) days in which to determine whether the records shall be released. Since the alleged request for records was never received by MAC Warden Caroline Mudd, and the record requested by Mr. Gober does not exist, there is no basis upon which to conclude that MAC violated the Kentucky Open Records Act in this case.
Subsequent to receipt of Ms. Dennis' response, this office received the original affidavit of Dotty Huff, which confirmed the facts as set out in her response and a copy of part II of disciplinary report, showing that no Warden's appeal was filed by Mr. Gober.
First, we address Mr. Gober's contention that the agency failed to timely respond to his request. In her affidavit, Ms. Huff advised that neither she nor Warden Mudd had received the request from Mr. Gober and his request was not in the files she maintained of open records requests. We have no reason to doubt the agency's assertion that it had not received the request. Obviously, an agency cannot respond to a request it does not receive.
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. Ms. Dennis, in her response, advised that the record Mr. Gober was requesting did not exist and explained why, i.e., Mr. Gober did not file an appeal of the disciplinary action taken 11/26/2003. Our review of the copy of part II of Mr. Gober's disciplinary report provided by Ms. Huff confirmed this fact. Thus, the record did not exist. 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. Accordingly, we find that the action of the MAC relative to Mr. Gober's request was proper and did not constitute a 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.
Footnotes
Footnotes
1 See copy of Affidavit provided by Dotty Huff. Original and copy of part II of disciplinary report, showing that no Warden's appeal was filed by Mr. Gober, to follow upon receipt by counsel.