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 Marion Adjustment Center ("MAC") violated the Open Records Act in its disposition of an open records request made by inmate Winston Wright on January 13, 2013. For the reasons that follow, we are unable to find a violation of the Act but must refer this matter to the Department for Libraries and Archives.
In his January 13 request, Mr. Wright asked for a copy "of Bridge Phase Expectations form signed Wright and witnessed by Amanda Rice dated Sept. 24, 2012. That was omitted from last request." On January 18, 2013, the MAC records custodian replied: "On 1-11-13 you received ALL documents from your file with your signature as requested by you. There was NO document omitted. There is no document in your file as described in this request." (Emphasis in original.)
Mr. Wright's appeal to this office was received on January 25, 2013. In addition to his original request and response, he attached "a copy of the requested document that I was able to obtain and remove from a grievance I'd filed in a related issue." This document is indeed titled "Bridge Phase Expectations" and is signed "Wright," witnessed by "A. Rice," and dated September 24, 2012.
Although copies of Mr. Wright's appeal were served on counsel for both the Justice and Public Safety Cabinet and the Corrections Corporation of America, which operates MAC, we have received no response to this appeal. Accordingly, there is nothing to refute Mr. Wright's representation that the "Bridge Phase Expectations" document was provided to him by MAC "from and through the grievance procedures" he had initiated at some point in time.
There is also nothing to refute the MAC records custodian's statement that no such document existed in Mr. Wright's file. Therefore, the document in question was in MAC's possession at some time in the past, but evidently was not contained in Mr. Wright's "file" as of January 18, 2013. Although there may be a reasonable explanation for this discrepancy, MAC has given us none. It is conceivable that a document of this nature could be kept somewhere other than an inmate's file, but there is nothing in the record to indicate that this is the case.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. We therefore do not find a violation of the Open Records Act. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the documents may have been lost or misplaced by MAC, which would create a records management issue.
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. The possible loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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:
Winston Wright, # 102720Amy V. Barker, Esq.Cole Carter, Esq.