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 Bell County Forestry Camp (BCFC) relative to the open records request of James M. Perry violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
On October 18, 2004, Mr. Perry submitted a request to the BCFC, in which he requested the following:
I would like to get one copie (sic) of my visiting list not the authorized list! The one that I had to get filled out and sent back for authorization.
By response dated October 19, 2004, Glenda Gambrel, records custodian at the BCFC, advised:
The form you have requested is available through your caseworker, Tom Hamlin. He is available during Open Door.
Shortly after receipt of BCFC's response, Mr. Perry initiated the instant appeal. In his letter of appeal, Mr. Perry stated he wanted a copy of the visiting form he had filled out in 2002.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
Upon receipt of this appeal, I spoke with Glenda Gambrel regarding her response. Ms. Gambrel informed me that she understood Mr. Perry's request to mean a copy of the form used to add persons to an inmate's list of authorized visitors, which form Mr. Perry would need to obtain from his caseworker (See Exhibit 1 -- Department of Corrections Visiting Information Form). It is clear from reading Mr. Perry's appeal, however, that he wished to obtain a copy of completed visiting information form(s). Visiting Information Forms are preliminary records used to prepare an approved visitation list for an inmate. Institutions maintain a database of an inmate's approved visitation list. (See Exhibit 2 -- 501 KAR 6:020, Corrections Policy & Procedure (CPP) 16.1, III.D.1.), however, Mr. Perry's visiting information forms (completed in 2002) no longer exist.
Mr. Perry's request did not specify that he wanted a completed visiting information forms. Since Mr. Perry was not sufficiently specific for her to tell he wanted completed forms, Ms. Gambrel correctly informed Mr. Perry to see his caseworker, CTO Tom Hamblin, to obtain blank visiting forms.
It is clear from his appeal, however, that he wanted copies of completed visiting information forms. The visiting information forms Mr. Perry completed in 2002 do not exist. A public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98.
This office is asked to determine whether the actions of the BCFC relative to the open records request of Mr. Perry violated the Open Records Act. For the reasons that follow, we conclude the agency did not violate the Act.
This office provided the BCFC and the Department with a copy of Mr. Perry's letter of appeal. The Department in its response provided to this office advised that the initial request was perceived as a request to obtain blank visiting forms. After reviewing Mr. Perry's letter, the Department stated it was clear that he was seeking completed visiting information forms he had completed in 2002 and affirmatively advised that the 2002 records no longer existed.
These circumstances support more a misunderstanding between the parties than an attempt to subvert the intent of the Open Records Act. Accordingly, we find that any procedural violation that may have been occasioned by the misunderstanding is mitigated by the Department's subsequent actions of advising him that no such copy of the document he requested existed. 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, we find no violation of the Act.
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.