Request By:
Richard Clay
Clay & Clay
319 West Main Street
Danville, KY 40422Warden James L. Morgan
Northpoint Training Center
Box 479
Burgin, KY 40310Marilene Rowland
Offender Records Custodian
Northpoint Training Center
Box 479
Burgin, KY 40310Emily Dennis
Staff Attorney
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, 2nd Floor
Frankfort, KY 40601
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 Northpoint Training Center (NTC) relative to the open records request of Richard Clay violated the Open Records Act. We conclude that, with the exception of a procedural deficiency, the NTC did not violate the Act.
By letter dated August 10, 2005, Mr. Clay submitted a request to the NTC for copies of:
1. All documents concerning the adjustment committee proceedings involving Mr. York over an incident of May 16, 2005, considered at an adjustment committee hearing on or about June 9, 2005;
2. A copy of the audio tape recording of such hearing, for which a blank tape is included for your use;
3. All documents supporting any claim of restitution from Mr. York;
4. Complete accounting of all funds obtained by way of restitution, including the date, nature, and source of funds received.
In his letter of appeal, dated August 19, 2005, Mr. Clay stated that he had received no response from the NTC.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis explained that the NTC had received Mr. Clay's request on August 11, 2005 and on August 18, 2005, Gregory M. Ulrich, Offender Information Specialist, NTC, responded, advising:
I am unable to fulfill your request for items 1 and 3 of your letter as Mr. York has been transferred to Kentucky State Penitentiary in Eddyville. The records you seek are there and unavailable to me. You can forward your request to them for those records at:
The tape to which you refer is unavailable due to apparent malfunction of the recording equipment. I regret that I cannot help you with this request at this time. We will produce the tape when the equipment has been repaired. If I can be of any further assistance, please forward those requests to me.
In her supplemental response, Ms. Dennis further addressed the issues raised in the appeal. With respect to request item # 4, Ms. Dennis advised that Mr. Clay had been provided with a copy of Mr. York's institutional account balance sheet showing transactions from 6/01/2005 through 7/31/2005. With respect to request item # 2, Ms. Dennis advised that Mr. Ulrich mailed Mr. Clay a copy of the taped record of the adjustment proceeding he had requested on 8/29/2005.
Pursuant to 40 KAR 1:030 Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." 04-ORD-106; 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that "the propriety of the initial denial becomes a moot issue" if access to the public records that the requester seeks to inspect or copy is initially denied but subsequently granted. 04-ORD-046, p. 3, citing OAG 91-140. As evidenced by the foregoing, any issues relative to request items # 2 and # 4 became moot upon release of these records to Mr. Clay; therefore, this office must decline to issue a decision in this regard.
Ms. Dennis further acknowledged that the NTC's initial response was procedurally deficient in that it failed to inform Mr. Clay as to the earliest date a copy of the tape would be available. KRS 61.872(5) requires that a public agency give a detailed explanation of the cause for further delay in providing the record and the earliest date the record will be available for inspection. Mr. Clay was advised that inspection of the tape would be delayed because of a malfunctioning of the recording equipment but was not advised as to the earliest date it would be made available. To this extent, the response was procedurally deficient.
With respect to request items # 1 and # 3, NTC advised Mr. Clay that it did not have these records; that Mr. York had been transferred to the Kentucky State Penitentiary (KSP) and those records had been transferred with him. NTC then provided Mr. Clay with the address of the KSP.
We begin by noting that a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. NTC discharged its duty under the Open Records Act by advising Mr. Clay that that it did not have the records requested in request items # 1 and # 3 and explained why. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
As noted above, the NTC advised Mr. Clay that these records were at the KSP and provided him with the address of that institution. This was in substantial compliance with KRS 61.872(4). 03-ORD-225.
Finally, we find that the NTC timely responded to Mr. Clay's request. KRS 197.025(7) affords correctional facilities five business days to respond to an open records request. As indicated in Ms. Dennis' supplemental response. Mr. Ulrich responded on the fifth business day (8/18/2004) after receipt of Mr. Clay's request by Warden Morgan, NTC, on 8/11/2005.
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.