Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in not providing requested documents. Although LSCC initially violated the Open Records Act in providing the wrong document, LSCC subsequently cured that deficiency by providing the correct document, and did not err in not providing documents that did not exist.
Uriah Pasha ("Pasha") submitted an open records request to LSCC on Feb. 13, 2014. Pasha requested "a copy of the MEMORANDUM, to: Adjustment hearing supervisor, From: Uriah Pasha 092028, Date: February 2014, RE: Disciplinary report DR # LSCC-2014-00164, Subj: written questions for Officer S. Goodpaster # 405 per CPP 15.6; and, a copy of Officer S. Goodpaster # 405 answers to the written questions." LSCC responded on Feb. 18, 2014 that "a copy of memo requested is enclosed. However a copy of response is denied. A response does not exist."
Pasha initiated this appeal on Feb. 20, 2014 on the grounds that "the agency mailed me the wrong memorandum and denied to mail me the response," and accused LSCC of concealing the requested documents. LSCC responded on Mar. 7, 2014 that "a copy of the memo located in KOMS that matches the description in the request is attached. The appeal is moot as to the memo requested since it has been provided." As to Officer Goodpaster's answers, LSCC stated that "the institution met its obligation by explaining that the response sought did not exist."
Although LSCC's initial response was deficient in that it provided the wrong memo, LSCC subsequently cured that deficiency by providing the requested memo. 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." Since Pasha has been provided the requested memorandum, the request for it is now moot.
Regarding Officer Goodpaster's answers, LSCC stated that they did not exist. "A public agency cannot produce nonexistent records or those which the agency does not possess. " 11-ORD-069. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. "In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess."09-ORD-214. Accordingly, we find that LSCC did not violate the Open Records Act in failing to provide documents which did not exist.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(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 # 092028Beth HarperAmy V. Barker