Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Leroy Hampton initiated this appeal challenging the disposition by the Kentucky State Reformatory (KSR) of his January 29, 2015 request for a "copy of final sentence and [judgment], and a copy of the amended sentence and judgment for" Warren Circuit Court Case Number 05-CR-00536. In a timely response KSR advised, "No amended order on file." KSR provided him with a copy of the Final Sentence and Judgment (four pages) in a timely manner. On appeal Mr. Hampton asserted, "The Judgment was amended and sentence entered by the Warren Circuit Court under Indictment [No.] 05-CR-00536." Upon receiving notification of Mr. Hampton's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker correctly observed that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. Citing prior decisions of this office, Ms. Barker further noted that a public agency discharges its duty under the Open Records Act by affirmatively indicating that records being sought do not exist. A public agency "is not required to 'prove a negative,'" Ms. Barker continued, in explaining the nonexistence of a record(s). See 11-ORD-209. KSR advised that a review of Mr. Hampton's inmate file, "where records of this type are maintained," was conducted and no amended order was located. For these reasons, KSR asked the Attorney General to affirm its disposition of Mr. Hampton's January 29 request. 1
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.
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