Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act in denying inmate Keith Morgan's April 16, 2010, request for a copy of a report provided to the Parole Board. For the reasons stated below, we find that KSR did not substantively violate the Open Records Act but did not fully discharge its procedural obligations under the statute.
Mr. Morgan's request, received April 19, 2010, was for a "[c]opy of Ms. Tanya P. Young[']s Report Provided to Parole Board, Around 2-2010." KSR's initial response from Offender Information Specialist Marc Abelove asserted the applicability of KRS 61.878(1)(i) and (j) to the document sought by Mr. Morgan. This appeal was initiated on May 5, 2010.
In the agency's principal response to Mr. Morgan's appeal, submitted on May 19, 2010, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, argues that the Parole Board's decision in Mr. Morgan's case was not based upon a report from Tanya Young, and therefore "any correspondence she submitted was at best a preliminary recommendation and was not incorporated in the Board's final action." Only after this office requested a copy of the withheld records pursuant to KRS 61.880(2) did the Cabinet respond that Tanya Young had been consulted and "has determined that no records exist that are responsive to the original request. [S]he has had no correspondence with the Parole Board within the time period requested, [and] any such correspondence would have in fact occurred several years earlier."
Given this representation, we find no substantive violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, KSR in its initial response did not affirmatively state this to be the case, and indeed failed to determine whether any responsive record existed, instead relying on the argument that any such record would be excluded by KRS 61.878(i) and (j).
Since it was incumbent on KSR to assert the nonexistence of any responsive records, the initial response on April 19, 2010, did not fully discharge the agency's duty under the Act. See 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and ? it is incumbent on the agency to [state their nonexistence] in clear and direct terms? While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient" ). This constituted a procedural violation of KRS 61.880(1), which provides that a public agency "shall notify in writing the person making the request, within the three (3) day period, of its decision" regarding the records in question. 10-ORD-094; 10-ORD-048. An agency cannot meaningfully be said to make a "decision" that records are preliminary when it fails to ascertain whether they even exist. We therefore conclude that KSR's response was procedurally deficient.
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.
Keith Morgan # 095544Marc AbeloveJonathan S. Milby, Esq.