Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Charon Anderson appeals the alleged failure of the Kentucky Correctional Institution for Women to respond to three open records requests for records relating to her. She identifies the dates of her requests and the records requested as follows:
. June 9, 2014 Program acceptance and denial log from September 2011 to present containing any SAP Programs, I.O.P., Willow, DAP, and other programs;
. June 10, 2014 Disciplinary reports resulting in loss of G.T.L. in July 2013;
. June 10, 2014 Medical report confirming her diagnosis of stenosis by her doctor and sent to KCIW in February 2012.
KCIW responds that it did not receive any of the three requests until notified by this office of Ms. Anderson's appeal. The agency states that it nevertheless compiled all existing records responsive to her requests and notified her the records would be mailed to her upon prepayment of copying and postage fees in the amount of ninety-seven cents. 1 The agency also advised her that it was unable to locate, and therefore unable to produce, the February 2012 medical report.
KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
This duty is triggered only "upon receipt of a request for a record." Ms. Anderson asserts that she "made [her requests] to KCIW" on June 9 and June 10. KCIW responds that "it did not receive any of the three requests until it received the appeal notice from the Attorney General's Office." In the absence of conclusive proof that KCIW received the requests, such as a certified mail receipt and proof of service confirming mail delivery or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute between these parties. 2 02-ORD-1 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency failed to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet).
KCIW fulfilled its obligations under the Open Records Act by notifying Ms. Anderson of the availability for mailing of all existing responsive records upon receipt of copying fees and postage costs. KCIW may properly require prepayment of fees and costs prior to mailing copies of records. KRS 61.872(3)(b); KRS 61.874(1). Notwithstanding her status as an inmate, Ms. Anderson is not entitled to a waiver of these fees and costs. Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); 08-ORD-160. KCIW cannot produce a record that does not exist within the agency and discharged its obligations relative to Ms. Anderson's request for a February 2012 medical report by advising her that no responsive record could be located. Ms. Anderson offers no proof to refute the agency's claim that the medical report was not forwarded to it. Under these circumstances, we find that KCIW did not violate the Open Records Act in responding to Ms. Anderson's requests.
Either party may appeal this decision 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:
Charon Anderson, # 177122Sarah St. ClairAmy V. Barker
Footnotes
Footnotes