Request By:
Michael Gaines, # 079993
Tom Campbell, Director
William P. O'Brien
Suzanne D. Cordery
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Department of Corrections violated the Kentucky Open Records Act in denying the request of Michael Gaines for one "copy of [the] time and date Parole Officer Meloney McMillian/Badge/ID/Number 535 sign [sic] into the Jail to visit Michael D. Gaines on [the] Third floor on March 2, 2007." Although this office is unable to conclusively resolve the factual issue concerning actual delivery and receipt of Mr. Gaines' request, and the LMDC initially failed to satisfy its burden of proof under KRS 61.880(2)(c) upon receipt of his appeal, the LMDC ultimately advised Mr. Gaines in writing that no such record exists following an adequate search; nothing more is required.
Having failed to receive a written response to his request dated October 15, 2007, Mr. Gaines initiated this appeal by undated letter received in this office on November 13, 2007. Upon receiving notification of Mr. Gaines' appeal from this office, Suzanne D. Cordery, Assistant Jefferson County Attorney, responded on behalf of the LMDC. According to Ms. Cordery, the LMDC "has searched its records. The Louisville Metro Department of Corrections never received the October 15, 2007 open records request by Michael Gaines." 1 Noticeably absent from this response is any indication of whether such a record exists; the LMDC also failed to cite any exception upon which it could rely as the basis for withholding same, assuming it does, instead relying exclusively upon the fact Mr. Gaines' request was not received.
In a letter directed to Mr. Cordery on November 21, 2007, the undersigned counsel acknowledged the inability of this office to resolve factual disputes concerning the actual delivery and receipt of requests, but also noted that the LMDC received a copy of Mr. Gaines' request with the notification of his appeal issued by this office. Because the initial response of the LMDC lacked the requisite specificity, this office asked the LMDC, by letter dated November 21, 2007, to "issue a written response to Mr. Gaines within three business days, in accordance with KRS 61.880(1), indicating whether such a record exists, citing the relevant statutory exception, if any, and briefly explaining how it applies to the record being withheld." In a letter directed to Mr. Gaines on November 28, 2007, a copy of which the LMDC forwarded to this office, Laura McKune, Deputy Director, Inmate Services, advised that the LMDC searched its "log book" but has "no entry of Officer McMillian signing into the facility on March 2, 2007." Because the LMDC appears to have conducted a search which could reasonably be expected to produce a record containing the information requested, the LMDC belatedly satisfied its burden of proof under KRS 61.880(2)(c) by affirmatively indicating that no such record exists in a written response to Mr. Gaines; the record is devoid of evidence to refute this assertion.
As a threshold matter, this office has consistently observed the following when confronted with factual disputes of the nature presented:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See 04-ORD-036; 03-ORD-204. As in the cited Open Records decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Gaines' request for this office to conclusively resolve the related factual discrepancy. Absent objective proof to the contrary, this office does not have any reason to question the veracity of the LMDC, and therefore finds no violation in this regard. In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statute.
That being said, the question becomes whether the LMDC violated the Act in failing to provide Mr. Gaines with a copy of a record containing the requested information. In our view, the analysis contained in 05-ORD-182 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Because the record is devoid of evidence to contradict Ms. McKune's assertion that none of the entries in the log are responsive to Mr. Gaines' request and there is nothing to suggest bad faith on the part of the LMDC, this office has no basis upon which to find a violation. Assuming the LMDC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record suggests, the LMDC fully complied with the Open Records Act, regardless of whether the search yielded any results, by notifying Mr. Gaines that no responsive entries were found, albeit belatedly. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. Because the LMDC is necessarily unable to produce for inspection or copying records which do not exist, and has complied with the statutory mandate to notify Mr. Gaines of that fact in writing, nothing more is required.
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 In addition, Ms. Cordery asserted that her agency "does not comprehend the statement that an 'incorrect document was send (sic) to wrong address to Sam Marshall . . . .'" Likewise, this office does not fully understand Mr. Gaines' reference.