Request By:
Timothy Enyart, # 100432
Joy Horton
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Thirteenth District Probation and Parole Office violated the Kentucky Open Records Act in failing to respond upon receipt of Timothy Enyart's request dated November 24, 2007, for a "copy of P.V. warrant or detainer or any document lodging me for new crimes committed on parole in 1996 in Daviess Co. KY [sic]," and his request dated February 21, 2008, for "a copy of any detainer or P.V. warrant lodged against me in Daviess Co. Owensboro KY. between January 31st 1996 and June 11th 1997 for my arrest on new charges on case no. 960CR-00110 [sic]." Given the conflicting evidence of record concerning the actual delivery and receipt of Mr. Enyart's original requests, this office is unable to conclusively resolve the related factual issue; however, the Probation and Parole Office cannot produce for inspection or copying nonexistent records or those which it does not possess. Because the Probation and Parole Office affirmatively indicated that a search did not yield any records which are responsive to his requests in a written response upon receipt of Mr. Enyart's appeal, nothing more is required.
By letter dated March 10, 2008, Mr. Enyart initiated this appeal from the denial by "Daviess Co. Probation and Parole in which both requests on 11-24-07 and 2-21-08 have been ignored." Upon receiving notification of Mr. Enyart's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of the Probation and Parole Office. In Ms. Dennis' view, "Mr. Enyart's complaint is without merit. Branch Manager [Joy] Horton and Supervisor [Bruce] Hewell attest that they did not receive the requests Mr. Enyart allegedly made." 1 Having reviewed the requests attached to Mr. Enyart's appeal "for the first time, they find no record" matching the descriptions provided. As correctly observed by Ms. Dennis, the instant appeal "presents a factual dispute concerning the actual delivery and receipt of the open records request Mr. Enyart allegedly made. See 05-ORD-013; 03-ORD-061. Mr. Enyart presents no proof that he mailed the alleged requests to Ms. Horton or Mr. Hewell." Because they never received the requests Mr. Enyart allegedly made, "there is no basis upon which to conclude either of them or the District 13 Probation & Parole Office violated the Kentucky Open Records Act. " In short, Ms. Dennis is correct in 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. Enyart's requests 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 Branch Manager Horton, Supervisor Howell or the Probation and Parole Office, 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 statutory mandate.
That being said, the Probation and Parole Office has denied having any records which are responsive to Mr. Enyart's requests and cannot produce for inspection or copying nonexistent records. In our view, the analysis contained in 07-ORD-023 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. Because the record is devoid of evidence to contradict Branch Manager Horton and Supervisor Howell's assertion that no such records were found, and there is nothing to suggest bad faith on the part of the Probation and Parole Office, the Attorney General has no basis upon which to find a violation. Because the Probation and Parole Office is necessarily unable to produce for inspection or copying records which it does not have and, upon reviewing the requests attached to Mr. Enyart's appeal, indicated that no such records were located in written response, this office finds that no violation occurred.
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 Attached to Ms. Dennis' response are signed affidavits to this effect from Ms. Horton and Mr. Hewell.