16-ORD-243
November 17, 2016
In re: William Chesher/Barren County Detention Center
Summary: Despite assertion that appellant’s original request for public records was never received, Barren County Detention Center violated Open Records Act by not advising appellant, upon notice of appeal, that it does not have the requested records.
Open Records Decision
The question presented in this appeal is whether the Barren County Detention Center violated the Kentucky Open Records Act, specifically KRS 61.880(1), in failing to issue a written response upon receipt of notice of William Chesher’s September 14, 2016, request for “all records, CD’s, DVD’s pertaining to visits and deposites to inmate accnt. from Karen Hiser AKA Karen Coffey for William Chesher (file #26473) year of 2013. (sic).” By a letter dated October 6, 2016, Mr. Chesher initiated this appeal, stating:
Please find enclosed copies of Open Record’s Request’s sent to the Barren County Detention Center and the Kentucky State Police at Campbellsville, as well as a Denial of an Open Records Request from the Kentucky State Police of Frankfort. As for the denial of the Open Records Request the requested items concerning the Casefile of the Kentucky State Police as well as the other requests were not provided by my Trial Attorney in my Discovery. . . (sic).
Notice of the Open Records Appeal was sent to Matt Mutter, Jailer, Barren County Detention Center, on October 18, 2016. Having received no response to the appeal from the Barren County Detention Center, this office sent another copy of the appeal via email to Juanita Adwell, Administrative Assistant, Barren County Detention Center, on October 26, 2016. On that same day, Ms. Adwell responded:
I have researched and have no record of receiving the open records request from Mr. William Chesher, I have also spoken with my superiors as well, as they do not have record that it was received. Since receiving this email notice, I have found no responsive records for this request…
This office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. (See 12-ORD-204 and authorities cited therein.) However, our analysis of this appeal does not end here.
Barren County Detention Center was notified of Mr. Chesher’s Open Records request on at least two occasions, the first when this office mailed the appeal (including a copy of the initial request) on October 18, 2016, and again when a copy of the appeal was emailed to the agency on October 26, 2016. The Detention Center provided no acknowledgment of whether it had received the copy of the appeal from this office sent on October 18, 2016, and its email response on October 26, 2016, contained nothing to indicate that its response had been sent to Mr. Chesher. Although the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist, an agency discharges its duty under the Open Records Act by affirmatively so indicating. 99-ORD-150. Upon notification of Mr. Chesher’s appeal of the Open Records Request, Barren County Detention Center was obligated to affirmatively advise Mr. Chesher that it did not have the requested records and adequately explain the steps taken to see if such records were maintained or existed at the facility. Barren County Detention Center’s failure to respond to Mr. Chesher’s request is a violation of KRS 61.880(1) and it must affirmatively advise him of its lack of responsive records and the steps taken to search for the requested records.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Andy Beshear
Attorney General
Gordon Slone
Assistant Attorney General
#419
Distributed to:
William Chesher
Matt Mutter