Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Hopkins County Jail violated the Open Records Act in responding to the open records request of inmate Harold Jones. Mr. Jones indicates that he submitted a written request on February 3, 2012, requesting to "review any document regarding my transfer from MCDC [Muhlenberg County Detention Center] on 2/2/2012" as well as "the procedures concerning the dissemination of information about the jail to the public, to government agencies and the media, pursuant to 501 KAR 3:020 Section 4(1) " (emphasis in original). Having received no response, he initiated an appeal to the Attorney General by letter dated February 7, 2012.
This office subsequently received a copy of a letter to Mr. Jones dated February 16, 2012, from Hopkins County Attorney J. Todd P'Pool. Mr. P'Pool stated as follows:
Please be advised that your Open Records Request dated February 3, 2012 was first received by Jailer Joe Blue on February 15, 2012. The initial request letter and your letter of appeal dated February 7, 2012 were sent to my office the same day they were received.
You requested the following documents:
Please be advised that pursuant to KRS 61.880, you will be responsible for reasonable copying expenses for all future requests.
(Emphasis in original.) Attached was a copy of Hopkins County Jail Policy and Procedure 1.4, titled "Public Information and Open Records."
In the absence of any indication that the jail received Mr. Jones' request earlier than February 15, 2012, we cannot find a procedural violation of the Open Records Act in its failure to respond sooner. With regard to the purported absence of any documents regarding Mr. Jones' transfer, 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 general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we conclude that the Hopkins County Jail did not violate the Open Records Act in its response to Mr. Jones' 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.
Distributed to:
Harold Jones, # 137917Joe Blue, JailerJ. Todd P'Pool, Esq.