Request By:
Roger A. Berke
Fulton County Jail
2010 S. 7th Street, # 105
Hickman, KY 42240Livy Leavell, Jr.
Christian County Jailer
410 W. 7th Street
Hopkinsville, KY 42240J. Michael Foster
Christian County Attorney
209 East 14th Street
P.O. Box 24
Hopkinsville, KY 42241-0024
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 actions of the Christian County Jail relative to the open records request of Roger A. Berke violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By request dated August 2, 2004, Mr. Berke submitted a request to the Christian County Jail, asking for copies of:
All paperwork - warrants, etc. - on my extradition/ governor's warrant/fugitive from justice paperwork out of both Rutherford Co., Tennessee and Christian Co., Ky.
In his letter of appeal, dated October 17, 2004, Mr. Berke indicated that as of that date, he had yet to receive a response to his request.
After receipt of notification of the appeal and a copy Mr. Berke's letter of appeal, J. Michael Foster, Christian County Attorney, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, provided this office with a response to the issues raised in the appeal. In his response, Mr. Foster stated that the jail staff had completed an exhausted review of its records relative to the appeal and advised:
First of all, the Christian County Jail has no record of ever receiving a request for such public records from Roger A. Berke.
Secondly, the files of the Christian County Jail contain no information, whatsoever, relative to a waiver of extradition for Roger A. Berke.
Berke was a prisoner at the Christian County Jail from July 15, 2002 until October 15, 2003 . After being convicted of several felonies in Christian Circuit Court, Berke was transferred to the LaGrange Correctional facility for classification.
A further search of records in the office of the Christian Circuit Court Clerk, reveals that Berke, in fact, waived extradition on Tennessee charges on February 11, 2004 in Christian District Court. As you can see, Berke was not a prisoner at the Christian County Jail at the time that he apparently waived extradition of Tennessee charges in Christian County District Court. Therefore, Christian County Jail is unable to produce any records that it does not have. It also appears that the Christian County Jail never had possession of the records so requested by Berke.
Mr. Foster's letter to this office indicates that a copy of the response was sent to Mr. Berke.
We are asked to determine whether the actions of the Jail violated the Open Records Act. For the reasons that follow, we conclude that the agency's actions did not constitute a violation of the Act.
We address first the agency's response advising Mr. Berke that the jail had no records responsive to his request. 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 Jail's response, in advising Mr. Berke that it had no records responsive to his request, was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
In his letter of appeal, Mr. Berke states that the Jail failed to answer his request. In his response, Mr. Foster advised that Jail staff had no record of ever having received a request for such records from Mr. Berke. Insufficient information is presented in this appeal for this office to resolve this factual dispute concerning the actual delivery and receipt of Mr. Berke's open records request. Thus, we make no finding in this regard. 03-ORD-061.
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.