Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lee Adjustment Center violated the Open Records Act in the disposition of Jay Gochie's April 17, 2005, request for detainer paperwork contained in his file. Mr. Gochie's request apparently went unanswered, prompting him to initiate this open records appeal. For the reasons that follow, we find that LAC's disposition of Mr. Gochie's request was procedurally deficient but substantively correct.
By letter dated June 20, 2005, Sherril Gautreaux, Assistant General Counsel for Corrections Corporation of America, the private corporation which operates LAC under contract with the Kentucky Department of Corrections, notified this office that "there is no detainer paperwork contained in [Mr. Gochie's] file" and that Mr. Gochie had been so notified on June 16, 2005. On this basis, Ms. Gautreaux opined, "CCA has discharged any duty it may have in responding to this Appeal."
While we concur with CCA-LAC in its view that it discharged its duties relative to Mr. Gochie's appeal by responding to this office's notification of same, we would be remiss in failing to note that LAC violated KRS 61.880(1) in the disposition of his original request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Mr. Gochie's appeal was apparently prompted by LAC's inaction and CCA does not proffer any evidence refuting his claims. We therefore conclude that LAC violated KRS 61.880(1) in failing to respond in writing, and within five business days, 1 to Mr. Gochie's April 17, 2005, open records request.
With reference to the substantive issue in this appeal, we refer the parties to 05-ORD-109, a copy of which is attached hereto and incorporated by reference, and in particular the discussion at pages 2 through 4. Here, as in the referenced decision, we conclude that LAC cannot be said to have violated the Open Records Act in denying Mr. Gochie access to records which do not exist. Although LAC failed to so apprise Mr. Gochie in writing, and in a timely fashion, this information was communicated to him on June 16, 2005, and this office notified on June 20, 2005. Consistent with the reasoning set forth in 05-ORD-109, we find that LAC properly denied Mr. Gochie's request for records on the basis of their nonexistence.
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.
Footnotes
Footnotes
1 KRS 197.025(7) affords correctional facilities five business days to respond to an open records request.