Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government ("LFUCG") violated the Open Records Act in failing to provide documents not in its possession or in not responding to a request for information. We find that LFUCG did not violate the Open Records Act in failing to provide documents not in its possession or in not responding to a request for information.
Charon T. Anderson ("Anderson") submitted an open records request to LFUCG on Aug. 6, 2014. Anderson requested "1 copy of Judge Shepherds Circuit Court order granting 143 day jail time credit out of Franklin County." Anderson initiated this appeal, which was received on Aug. 14, 2014. Anderson appealed on the grounds "that my open record request has been denied and that James Kammer, Custodian of Records has failed to give me the information needed to obtain the documents sought." Anderson stated:
On Aug. 4, 2014 . . . I requested a copy of "Confinement approval" by the probation and parole district officer. . . .
I am requesting $ 25.00 per day after the 5 days that it takes the Division of Community Corrections to provide me with the document or information on how to obtain this document.
Pursuant to KRS 055 13A. This facility is to provide technical assistance and consultation to local governments, in order to facilitate compliance with standards. There is no reason why this facility can't provide me with this document.
LFUCG responded to Anderson's appeal on Aug. 21, 2014. LFUCG stated:
Ms. Anderson communicated to a member of the Fayette County Detention Center staff that she wanted to submit an open records request for her Kentucky Offender Management System file. The Detention Center staff member then emailed the request to the appropriate individuals in the Division of Community Corrections. The Division of Community Corrections' Custodian of Records, James J. Kammer, provided a written response informing Ms. Anderson that her Kentucky Offender Management System file was maintained by the state, and that the Division of Community Corrections was not the official custodian of that record. Ms. Anderson then filed this appeal . . . . The written request, which was never submitted to the Division of Community Corrections at any time prior to this appeal, clarifies that Ms. Anderson is seeking one copy of an order allegedly granting Ms. Anderson 143 days jail time credit from Judge Shepherd of the Franklin County Circuit Court.
The Division of Community Corrections does not possess the record that Ms. Anderson seeks in fact, nor is it the legal custodian of the record. Accordingly, we ask that Ms. Anderson's appeal be denied so that she may bring her open records request to the appropriate entity, which in this case would be the Kentucky Department of Corrections.
"A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 14-ORD-100. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 14-ORD-147. LFUCG has stated that it is not in possession of the record requested by Anderson, nor is it the legal custodian. Accordingly, we find that LFUCG did not violate the Open Records Act in failing to provide documents not in its possession. Additionally, this office has long held that "requests for information, as opposed to records, are outside the scope of the open records provisions. . . . Public agencies are not statutorily obligated under the Open Records Act to honor requests for information as opposed to requests for public records." 06-ORD-146. Accordingly, LFUCG did not violate the Open Records Act in failing to respond to Anderson's requests for information.
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:
Charon T. Anderson # 177122James J. KammerMichael R. Sanner