14-ORD-247
December 23, 2014
In re: Charon Anderson/Shelby County Detention Center
Summary: Shelby County Detention Center failed to respond to open records request but did not substantively violate the Open Records Act where the requested record did not exist.
Open Records Decision
The issue presented in this appeal is whether the Shelby County Detention Center violated the Open Records Act in responding to the open records request of inmate Charon Anderson. On October 31, 2014, Ms. Anderson wrote to the inmate records custodian:
I am requesting policy & procedure showing that I can be stripped of my religious, legal and dentures [sic] & placed on the county side for expressing my mistreatment by medical [sic].
Not having received a response, she initiated an appeal to the Attorney General, which was received in this office on November 13, 2014.
On November 18, 2014, Shelby County Jailer Bobby Waits responded to this appeal by stating, “There is no such document.” Nothing in the record indicates that any prior response had been made to Ms. Anderson’s request.
KRS 61.880(1) requires a public agency to make a disposition of a request for public records within three days, exclusive of weekends and holidays. Since the Shelby County Detention Center failed to respond within that time, we find a procedural violation of the Open Records Act.
We find no substantive violation, however. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized “an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . .” KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency’s representation that no such record exists. Cf. Bowling v. Lexington-Fayette Urban County Gov’t, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we conclude that the Shelby County Detention Center did not substantively violate the Open Records Act in its ultimate disposition of Ms. Anderson’s request.
A party aggrieved by this decision may appeal it 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.
Jack Conway
Attorney General
James M. Herrick
Assistant Attorney General
#471
Distributed to:
Charon Anderson
Bobby Waits, Jailer
Hart Megibben, Esq.