Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the response of the Lexington-Fayette Urban County Government (LFUCG), Division of Community Corrections (Division), to the open records request of Aaron Rivers violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By letter dated September 15, 2004, Mr. Rivers submitted the following requests, numbered (2) and (4), relevant to this appeal, to the Division:
2. Any contract, covenant or agreement that this agency has with any person, proprietorship, company or corporation for the operation of the commissary at this agency. I need this to file a small claims complaint for money that was taken off of my account for items that I did not receive due to being in segregation. And, so that I may pass this information to other inmates that have been hoodwinked and need to file civil actions. (With my assistance.)
4. All documents that identify the person(s) who has created or enacted or failed to establish the illegal policy or directive that authorizes or instructs staff not to allow "F" Unit inmates to purchase dental floss that is necessary to maintain dental hygiene and postage, paper, and envelopes needed to mail complaints, briefs, and other documents to the Courts that weigh too much to be placed in the single 37 [cents] envelope that is provided two times a week.
Responding to Mr. Rivers' request on behalf of the Division, R. S. Pridemore, Assistant Director, Community Corrections, advised, in relevant part:
2. This request is denied pursuant KRS 197.025(2) and 04- ORD-015, request must be a record which contains a specific reference to the individual.
4. The current care pack we provide in the facility doesn't include dental floss and there are no plans to start at this time. Other oral hygiene products (tooth brush and paste) are included in the care pack to help inmates maintain their oral hygiene.
As a result of the Division's response to his numbered requests 2 and 4, Mr. Rivers initiated the instant appeal.
After receipt of notification of the appeal and a copy of Mr. Rivers' letter of appeal, Michael R. Sanner, Corporate Counsel, LFUCG, provided this office with a response to the issues raised in the appeal. In his response, Mr. Sanner elaborated on the Division's initial response and advised:
It should be noted that in Footnote No. 1 of his appeal, Mr. Rivers states that he is no longer under the jurisdiction of Kentucky or Virginia DOC. Mr. Rivers states he is a federal prisoner in the sole custody of the United States government by writ of U.S. District Court. This declaration would seem to indicate that Mr. Rivers does not believe he is subject to KRS 197.025(2). However, the Attorney General has held in 03-ORD-150 that federal inmates being held in a local detention center are defined as an inmate confined to jail for the meaning of KRS 197.025(2). The Attorney General further stated to hold otherwise would facilitate circumvention of the State's prohibition on inmate access by enabling a federal pretrial inmate to obtain records on behalf of other inmates. The Attorney General also stated that the prohibition on access extends to all inmates confined in jail or a local detention center and not just those who have been convicted in state court.
With regard to Item No. 2 of Mr. Rivers' request, the Attorney General has also held in 03-ORD-074 that an inmate is not allowed to inspect contracts between the Division of Community Corrections and food services as the contracts do not specifically pertain to him pursuant to KRS 197.025(2) because the contracts do not contain a specific reference to the requesting inmate.
Since Aaron Rivers is not specifically mentioned in the Division's contract with the commissary, he is prohibited from inspecting the document, pursuant to KRS 197.025(2).
With regard to Item No. 4 of his request, Mr. Rivers asked several questions within this request that were answered by Mr. Pridemore in his response. The only documents requested by Mr. Rivers were "[a]ll documents that identify the person(s) who has created or enacted or failed to establish the illegal policy or directive that authorizes or instructs staff not to allow "F" Unit inmates to purchase dental floss . . .". There are no documents which identify any such persons who created or enacted or failed to abolish the illegal policy to which Mr. Rivers has made reference. However, Mr. Pridemore did answer Mr. Rivers' questions regarding the dental floss and postage questions, although there were no documents responsive to this portion of his request. The Attorney General has consistently held an agency cannot produce documents which do not exist.
We are asked to determine whether the responses of the Division violated the Open Records Act. For the reasons that follow we conclude that the responses were consistent with prior decisions of this office and did not violate the Act.
Addressing first Mr. Rivers' request for a copy of the contract the Division had with the person or company operating the commissary; we find that the Division did not violate the Open Records Act in denying this request on the basis of KRS 197.025(2). Mr. Rivers argues in his letter of appeal that the contract between the Division and the commissary pertains to him since he is a third party beneficiary to the contract that relates to providing the inmates with the commissary. This argument is without merit. We believe that 03-ORD-074 (holding that, pursuant to KRS 197.025(2), an inmate is not allowed to inspect contracts between the Division of Community Corrections and food services as the contracts do not contain a specific reference to the requesting inmate, directly applicable and is dispositive of this issue on appeal). See also, 03-ORD-150 (holding that federal inmates being held in a local detention center are defined as an inmate subject to the application of KRS 197.025). Accordingly, we conclude that KRS 197.025(2) applies to Mr. Rivers and because the requested record does not contain a specific reference to him, KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 fully authorized the Division's denial of this request.
We next address Mr. River's request for "[a]ll documents that identify the person(s) who has created or enacted or failed to establish the illegal policy or directive that authorizes or instructs staff not to allow "F" Unit inmates to purchase dental floss. " 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; 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Division in its supplemental response advised that no record responsive to this request existed. Accordingly, we find no violation of the Open Records Act in this regard.
A party aggrieved by this decision may appeal it by initiating an 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 KRS 61.878(1)(l)authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.