Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Kentucky State Reformatory subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), by failing to provide Uriah Pasha with the records to which he requested access on January 25, 2011. Mr. Pasha requested copies of "certificates of completion issued by the C.P.T.U. C.H.A.N.G.E.S. Program for completing Levels one, two, three, and four." KSR provided him with two Elective Program Certificates of Completion. In so doing, KSR failed to discharge its statutory duties under the Act.
Upon receipt of notification of Mr. Pasha's appeal, KSR corrected its error by providing Mr. Pasha with three certificates reflecting completion of the C.H.A.N.G.E.S. program, but did not advise him that the fourth certificate could not be provided because he did not complete the fourth level of the program. This error was not corrected until the Justice and Public Safety Cabinet supplemented KSR's response to Mr. Pasha's appeal.
We do not share the Cabinet's view that this appeal was mooted by belated disclosure of three of the four certificates Mr. Pasha requested. An agency's inability to produce a record owing to its nonexistence is, as we have often noted, tantamount to a denial. See 01-ORD-38 (enclosed) . An appeal cannot be mooted pursuant to 40 KAR 1:030 Section 6 unless all requested records are disclosed to the complainant after the complaint is made. While it is certainly true that KSR cannot produce a record that does not exist, it cannot moot an open records appeal by making partial disclosure. See 09-ORD-007 (enclosed) . Accordingly, we find that the issues on appeal are not moot and that KSR's errors constituted a subversion of the intent of the Open Records Act.
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.