Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Eastern Kentucky Correctional Complex did not violate the Open Records Act in denying Shannon Billy Riley's September 1, 2004, request for recordings of telephone calls placed by Mr. Riley to the Department of Public Advocacy on June 16, June 15, June 14, and June 10, 2004, on the basis that no such records exist because "the telephone system does not record the number listed above." It is the decision of this office that 99-ORD-134, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue presented in this appeal.
In 99-ORD-134, the Attorney General held that where access to public records is denied on the basis of the records' nonexistence, the agency issuing the denial satisfies its statutory burden of proof by offering a reasonable explanation for the nonexistence of the records. Here, EKCC explains that pursuant to Corrections Policy and Procedure 16.3, Section V. C., "staff shall not listen to a call from an inmate to his attorney" and that "the system for recording telephone calls is programmed to block any recording of an inmate telephone call to (502) 564-8006 [the Department of Public Advocacy]." For this reason, no responsive records exist. As EKCC correctly observes, "a public agency cannot give a person access to records that it does not have or which do not exist . . . [and] discharges its duty under the Open Records Act by affirmatively so stating." Based on the cited open records decision, we find no violation of the Open Records Act and affirm EKCC's denial of Mr. Riley's request.
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.
Shannon Billy Riley, # 162277Eastern Kentucky Correctional ComplexDorm 3 DU-13200 Road to JusticeWest Liberty, KY 41472
Lt. Michael SmithRecords CustodianEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisDepartment of CorrectionsOffice of General Counsel2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400