Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in not responding to a request within five days, and in not providing documents which did not exist. The Attorney General is unable to resolve a factual dispute regarding actual delivery and receipt of a request, and NTC did not violate the Open Records Act in not providing documents which did not exist.
Uriah Pasha ("Pasha") submitted an open records request to NTC on Mar. 26, 2014. Pasha requested "a copy of Uriah Pasha 092028 letter of March 2014, to Deputy Warden of Programs, Northpoint Training Center . . . concern KOMS entry of Disciplinary Report DR # NTC-2012-00395." Pasha initiated this appeal on Apr. 8, 2014 on the grounds that "the agency has not responded within five days." NTC responded on Apr. 16, 2014:
NTC staff reviewed the open records log for the request and could find no record that the request had been received. After receiving the request with the appeal, NTC searched for the requested letter and could not locate the described record. To the best of the institution's knowledge, the record does not exist at NTC.
NTC attached a response to Pasha dated April 16, 2014 indicating the same.
KRS 197.025(7) provides that "upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request." NTC has stated that it has no record of the request. "This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request." 12-ORD-204. In the absence of any proof that NTC actually received Pasha's request, we cannot find that NTC violated KRS 197.025(7) in failing to respond to a request it claims it did not receive.
Further, NTC searched for the document requested, and informed Pasha that it 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. Accordingly, NTC did not violate the Open Records Act in failing to provide documents that 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 # 092028Jennifer MaryeAmy V. Barker