Opinion
Opinion By: Jack Conway, Attorney General; Matt James, 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 not providing records that do not exist. We find that KSR did not violate the Open Records act in not providing records that do not exist, and providing records subsequent to the requester's clarification of the request.
Uriah Pasha ("Pasha") submitted an Open Records Request to Kentucky State Reformatory on Nov. 26, 2013. Pasha requested "a copy of the March 28, 2011 sick cell slip which scheduled an appointment March 29, 2011 for Uriah Pasha # 092028 Left foot and the Physician's Notes and follow up treatment therefore." KSR responded on Dec. 6, 2013. In its response, KSR offered to provide the sick 'cell' slip scheduling an appointment on Mar. 29, 2011 upon payment. KSR also stated that Pasha was seen on Mar. 28, 2011 by nursing staff and not a physician, and that no document existed that was responsive to the second portion of Pasha's request. Pasha initiated this appeal on Dec. 12, 2013 on the grounds that the response was unsigned, and that "if there exist a Nursing Staff examination, then . . . there is some form of follow-up treatment." On Dec. 19, 2013, KSR sent a signed supplemental response to Pasha, which stated that "even though you did not request Nursing Progress Notes from your March 29, 2011 Sick Call appointment, that letter was intended to inform you that nursing notes were located," and that the notes were available upon payment. KSR reiterated that no "physician notes and follow up treatment therefore" existed for that date. In its response to this office, KSR included its supplemental response to Pasha, stated that the initial response was not clear on all points of the request, and that the nursing notes had been offered to be provided on payment. KSR maintains that the appeal is now moot, as the requested records have been offered upon payment.
KSR's initial response complied with the Open Records Act, as did its supplemental response. KRS 61.872(3)(b) provides that an agency shall provide copies of a public record after the requester "precisely describes the public records." "KRS 61.872(3)(b) relieves the agency of its duty to mail copies if the requester fails to precisely describe the records sought." 11-ORD-199. It is the requester's duty to precisely describe the records, and if the requester does not, the agency has0 no duty to provide records that are not precisely described. Since no physician's notes and follow up treatment existed, KSR did not err in failing to provide them. "A public agency cannot afford a requester access to a record that it does not have or which does not exist." 11-ORD-209. Accordingly, KSR did not violate the Open Records Act in not providing non-existent physician's notes and follow up treatment in response to Pasha's request.
Even assuming that the nursing progress notes should have been determined by KSR to be reasonably within the scope of Pasha's request, KSR subsequently rendered the issue moot by offering to provide the nursing progress notes upon payment. 40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since any existing responsive documents have been offered to be provided upon payment, we find no violation of the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Uriah Pasha # 092028Karen VestyAmy V. Barker