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 Lee Adjustment Center (LAC) relative to Kevin Howard's request for a copy of "his court call tape, for his [disciplinary] hearing on 10-13-04, Tape 181, Side B, Begin 001, End 101, violated the Open Records Act. For the reasons that follow, we find that, with the exception of a procedural deficiency, the actions of the LAC were in substantial compliance with the Act.
On January 13, 2005, Bobby Moore, Records Custodian, LAC, timely responded to Mr. Howard request, received January 6, 2005, advising:
Forwarded to Adjustment Committee Chairman Mike Bowling. Lt. Mike Bowling stated he can not find the tape due to the previous Adj. Chairman no longer works at LAC and that he would continue to look for the tape if you want to resubmit in a couple of weeks.
In his letter of appeal, Mr. Howard indicated that he has resubmitted another request for the court call tape on January 26, 2005, and as of the date of his letter, February 17, 2005, he had not received a response to his resubmitted request.
After receipt of notification of the appeal and a copy of the letter of appeal, Sherril Gautreaux, Assistant General Counsel, Operations, Corrections Corporation of America, provided this office with a response to the issues raised in the appeal. In her response, Ms. Gautreaux, in relevant part, advised:
LAC facility staff members have diligently searched for the tape Inmate Howard is requesting and cannot locate the tape (in addition to other missing tapes and records). LAC staff members will continue to search for the tape and in the event the tape is discovered will promptly forward the tape to Inmate Howard at EKCC. There are intervening circumstances that are contributing to the difficulty in finding the tape (if it in fact does exist at the facility). An inmate disturbance occurred at LAC in September, 2004 where substantial fire and water damage to the facility occurred. The facility is under a significant amount of construction to rebuild from this unfortunate incident.
For the reasons that follow, we conclude that LAC's actions relative to Mr. Howard's request, although procedurally deficient, was in substantial compliance with the Open Records Act.
The actions were inconsistent with the procedural requirements of KRS 197.025(7) in its handling of Mr. Howard's resubmitted request. That statute provides:
Upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
This statute requires a timely, written response directed to the person making the request. To the extent that the LAC failed to provide Mr. Howard with a written response within five business days after receipt of his request was a procedural violation of the Act.
Turning to the substantive issue, 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.
The LAC advised Mr. Howard that after diligent efforts it could not find the requested tape. LAC further advised Mr. Howard that it would continue to search for the tape and if located would provide him with a copy. In addition to the above, LAC explained that a recent inmate disturbance occurred at LAC in which substantial fire and water damage to the facility occurred disrupting the normal operation of the facility and that the former Adjustment Committee Chairman responsible for the safekeeping of the tape was no longer employed there making the location of the tape, if it exists, more difficult. Obviously, a public agency cannot afford a requester access to a record that it does not have or which no longer exists. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Accordingly, under the facts of this appeal, we find no evidence of an attempt to subvert the intent of the Act and conclude that the actions of the LAC were substantively in accord with the requirements of the Open Records Act.
The LAC has advised Mr. Howard that it would continue to search for the tape and if located would provide him with a copy at his current residence at the Eastern Kentucky Correctional Complex. Although the LAC has had intervening circumstances occur which has disrupted the normal flow and maintenance of its records, it should take steps to keep its records in such a fashion to ensure their safety and in a manner that they can be easily located.
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.