Request By:
Russell Ruhl, # 090521
Barbara Ballew
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Luther Luckett Correctional Complex's (LLCC) disposition of Russell Ruhl's March 13, 2008, request for a copy of his "Resident Record Card issued between June -- September 2007," violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By response of the same date, Kalinta Underwood, records custodian, LLCC, provided Mr. Ruhl with a copy of his current resident record card free of charge, advising him "[w]e are not able to print previous timesheets. This is a current time sheet."
Shortly thereafter, Mr. Ruhl initiated the instant appeal, arguing that the Kentucky Department of Corrections has hard files that they keep records for inmates, and the LLCC maintains and has access to all printouts.
After receipt of notification of the 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, she advised, in relevant part:
An inmate's resident record card is a real time overview of the sentences for which an inmate is serving, the inmate's Parole Board history, and any good time credits the inmate may have earned during his incarceration. The resident record card is an ever changing document based on these factors (sentencing, Parole Board, and good time credit history). The information on a record card is updated if any of these three (3) factors change; thereby making the former record card obsolete. The record card is electronically maintained and updated, and it is not incumbent on a public agency to perform research or create obsolete documents responsive to an open record request.
In a reply letter to the agency's response, dated April 8, 2008, Mr. Ruhl asserted that, prior to June 2007, the Department of Corrections' resident record cards were hard copies and were updated regularly, but maintained for future references.
The same is true with the electronic system. The record card is now an ongoing running record disk that is not deleted but supplemented as new data is placed therein.
For the reasons that follow, we find that the LLCC's disposition of Mr. Ruhl's request did not violate the Open Records Act. In its supplemental response provided to this office, LLCC explained that an inmate's resident record card is an electronic record maintained in real time and is an ever changing document, i.e., information on the card changes when there is a change in the inmate's sentencing history, Parole Board history, and/or good time credit history. Mr. Ruhl acknowledged that the resident record card was an ongoing running record in his reply to this office. The LLCC provided Mr. Ruhl with a copy of his current resident record, the only record it had responsive to his request.
The LLCC further explained that once the information on the card is updated, the former record card is obsolete, and it is under no duty to create an obsolete record. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The LLCC discharged its duty under the Open Records Act by affirmatively so advising and providing a credible explanation for the nonexistence of other responsive records. 07-ORD-243. Moreover, the Open Records Act imposes no obligation on a public agency to create a record that it does not have or which does not exist in order to satisfy a records request. 06-ORD-232. Accordingly, we find no violation of the Act in this regard.
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.