Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Donald Moore, an inmate at the Kentucky State Reformatory (KSR), requested a copy of his "Judgment and Sentence" in Jefferson Circuit Court Case No. 92 -CR-1958. Unable to find the record requested by Mr. Moore, KSR provided him with a copy of a "Judgment of Conviction and Sentence," Case No. 93 -CR1-958, dated December 16, 1993, in which Mr. Moore was the defendant. Mr. Moore appealed KSR's response, claiming that he "was not in Jefferson County Circuit Court December 13, 1993, to be sentenced under case no. # 93-CR-1958," and that the "Jefferson County Grand Jury has never returned a true bill against me under case no. # 93-CR-1958. Please cause the agency to send to me a copy of the Final Sentence & Judgment for Jefferson County Circuit Court Case No.: # 92-CR-1958, or investigate why I am being held to answer for an crime I never committed [ sic ]."
On appeal, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, provided a statement from Kimberly Campbell, Offender Information, Kentucky State Reformatory. Ms. Campbell admitted that she provided the record regarding 93-CR-1958 because she "believed he made a typo in his original request as he is currently incarcerated under the 93CR1958 case. If he intended to obtain a judgment for himself with the number 92CR1958 then KSR does not possess this, as it never received the document." Ms. Campbell's statement was attached to Ms. Barker's letter, a copy of which was sent to Mr. Moore.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225. While Ms. Campbell acted reasonably in providing Mr. Moore with the record that pertained to him, it was incumbent upon her to notify Mr. Moore that KSR did not possess the record he had actually requested.
Ms. Campbell initially failed to confirm the nonexistence of the requested record but remedied this error in responding to Mr. Moore's appeal. Because Ms. Campbell, through Ms. Barker's letter, ultimately confirmed to Mr. Moore that no responsive record exists and provided a plausible explanation for the nonexistence of the record in writing, the Attorney General finds no error in the agency's final disposition of Mr. Moore's request. See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 14-ORD-107; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ).
In closing, Ms. Barker also correctly asserted that an Open Records Appeal is not the proper forum in which to resolve the other issues regarding his criminal conviction that Mr. Moore raised in his letter of appeal. See 99-ORD-121; 08-ORD-142. Based upon the foregoing, this office affirms the agency's disposition of Mr. Moore's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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.