Request By:
David Ward
Leigh K. Meredith
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 actions of the Kentucky State Reformatory (KSR) relative to the open records requests of David Ward for a copy of a letter from December 2006 that he alleges he sent to the Department of Corrections, Division of Local Facilities about medical care and treatment he received from the Lincoln County Jail, violated the Kentucky Open Records Act. For the reasons that follow, we find that the actions of the KSR did not violate the Act.
In his letter of appeal, Mr. Ward alleged that he sent requests for the records on April 14, 2008, and May 19, 2008, and received no response to either request.
After receipt of notification of the appeal, Leigh K. Meredith, 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:
First the DOC did not violate the Open records Act by failing to respond to Mr. Ward's request because DOC Division of Local Facilities never received the alleged open records requests.
?
Please see attached the sworn "Affidavit" of Mr. Jeff Burton, Assistant Director of Division of Local Facilities, at DOC, dated July 21, 2008. Upon notification of the appeal, Mr. Burton reviewed the open records log for the Division of Local Facilities, the list of complaints filed to the Division of Local Facilities and KDMS records for Mr. Ward and confirmed that the Division of Local Facilities did not receive an open records request from Mr. Ward dated April 14, 2008 or May 19, 2008. Since the Division of Local Facilities never received the open records request, there is no basis for the Attorney General to conclude that the DOC violated the Open Records Act.
We address first Mr. Ward's allegation that the KSR failed to respond to his open records requests. In his letter of appeal, Mr. Ward asserted that he had sent two requests to the Department of Corrections, Division of Local Facilities and had received no response for either. Ms. Meredith advised that she had contacted the Department of Corrections, Division of Local Facilities which indicated it never received either request. Insufficient information is presented in this appeal for this office to conclusively resolve the factual dispute and the related procedural issue concerning the actual delivery and receipt of Mr. Ward's open records requests, and we make no finding in this regard. See 05-ORD-013; 03-ORD-061.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist. 04-ORD-036. An agency discharges its duty under the Open Records Act by affirmatively so indicating. Because KSR affirmatively advised Mr. Ward that it did not have the requested record and adequately explained the steps taken to see if such a record was maintained or existed at the facility, its response did not violate the Open Records Act in this regard. 99-ORD-108, p. 3.
A party aggrieved by this decision may appeal it by initiating an 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.