Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Open Records Act in its disposition of inmate Charlie Dorris' open records request for "17.4 7/9/15" dated September 18, 2015, and received September 22, 2015. For the reasons stated below, we find no violation of the Act.
On September 28, 2015, the records custodian indicated that the requested record had been sent. Mr. Dorris appealed to the Attorney General on September 30, 2015, alleging that he had only received "the initial form" for his CPP 17.4 Sentence Calculation, and not "the Appeal to the Sentence Calculation and the opinion thereto."
On October 13, 2015, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded as follows:
Despite the somewhat cryptic nature of the request, KSR staff correctly provided the records for the CPP 17.4 Sentence Calculation Administrative Review dated July 9, 2015 as they existed at the time of the request and response. Staff at the Department of Corrections central offices prepares the next level of the appeal of the review and the appeal response did not exist at the time of the open records request and response. The appeal response was created on October 13 as indicated by the date on the response.
Ms. Barker attached a copy of the appeal response dated October 13, 2015.
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. Assuming that this October 13 document was the only record not provided in response to Mr. Dorris' request, we find no violation of the Open Records Act because the record had not yet been created at the time of the response.
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.