Request By:
James Briggs, # 171698
Chuck Hughes
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 Department of Corrections, Division of Local Facilities violated the Kentucky Open Records Act in denying James Briggs' request for a copy of the "investigate[ga]tion report" concerning his "complaint of [m]edical negligence by the Union County Detention [Center] staff." Although the Division's initial response was procedurally deficient, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. Having affirmatively indicated to Mr. Briggs on appeal that no existing records in the possession or custody of the Division are responsive to his request following a good faith effort to locate any such records, and complied with KRS 61.872(4), the Division belatedly discharged its duty under the Open Records Act.
By letter directed to Chuck Hughes, Jail Services Specialist on February 29, 2008 (sent in response to Mr. Hughes' letter dated January 28, 2008), 1 Mr. Briggs requested a copy of Mr. Hughes' report concerning the injury that Mr. Briggs allegedly suffered on November 13, 2003, while housed at the Union County Detention Center. On March 14, 2008, Mr. Hughes advised Mr. Briggs that his request "should instead be addressed to the Department of Corrections in Frankfort, KY. I am not the custodian of any official records." Mr. Hughes further advised Mr. Briggs to send any Open Records request to:
Kentucky Department of Corrections
Division of Local Facilities
P.O. Box 2400
Frankfort, KY 40601
In conclusion, Mr. Hughes indicated that any request for inspection of Mr. Briggs' medical records "should be addressed to the Union County Jail."
Disputing that Mr. Hughes "isn't the custodian of his own investigation record," Mr. Briggs subsequently initiated this appeal from the denial of his request. In addition, Mr. Briggs alleged that Mr. Hughes failed to comply with KRS 61.880(1) insofar as he mailed the request on February 29, 2008, but Mr. Hughes did not respond until March 14, 2008, "way over the 3 days" 2 in which he was required to respond under the Open Records Act. To clarify, Mr. Briggs noted that he is "not requesting medical records, only the written investigation record."
Upon receiving notification of Mr. Briggs' appeal from this office, Emily Dennis, DOC Staff Attorney, responded on behalf of the Division, initially acknowledging that "the direction to inmate Briggs to make his request to the KY DOC Division of Local Facilities was incorrect, as the letterhead upon which Mr. Hughes drafted his response is the same address to which Mr. Briggs was told to direct his request." In addition, Mr. Hughes "should have provided the address for the Union County Detention Center." Ms. Dennis discussed this matter with Jeff Burton, Assistant Director for the Division, and he advised her that Mr. Hughes' response "resulted from a clerical error. He also advised that he has taken steps to ensure that this error will not recur." Accordingly, this office will not belabor the procedural issue.
On April 10, 2008, Ms. Dennis supplemented her written response, advising that Mr. Burton "reviewed records of the Division of Local Facilities upon his return to the office this week and informs me that there are no additional investigative records responsive to Mr. Briggs' request other than the January 28, 2008 letter from Jail Services Specialist Chuck Hughes," a copy of which is attached to both her written response and Mr. Briggs' letter of appeal dated March 18, 2008. Ms. Dennis also confirmed that Western Kentucky Correctional Complex, where Mr. Briggs is currently housed, does not possess any medical records "allegedly generated in November 2003 due to a fall at the Union County Detention Center." In order to receive copies of his medical records "as possessed by the Union County Detention Center relative to the alleged fall on November 13, 2003," Mr. Briggs should "direct his request to Marty Girten, Jailer, Union County Detention Center, 120 South Central St., Morganfield, KY 42437."
Because the Division has affirmatively indicated that a search did not yield any existing records which are responsive to Mr. Briggs' request, and has complied with KRS 61.872(4) in providing him with contact information for the agency in possession of any existing records which are potentially responsive, nothing more is required; the Division cannot provide Mr. Briggs with nonexistent records or those which it does not possess. In our view, the analysis contained in 06-ORD-063, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. Absent evidence to refute Ms. Dennis' assertion that a search did not yield any "investigative report" allegedly in the possession of the agency, this office affirms the denial of Mr. Briggs' request.
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 A copy of Mr. Hughes' letter is attached to Mr. Briggs' appeal. In relevant part, Mr. Hughes advised Mr. Briggs that his letter of complaint was received on November 21, 2007, and investigated by Mr. Hughes, but there "was no merit to [his] claims."
2 Contrary to Mr. Briggs' assertion, the DOC has five business days upon receipt of a request in which to issue a written response under KRS 197.025(7). To the extent Mr. Hughes failed to respond within this period of time, his response was procedurally deficient.