Request By:
Brandon Moman, # 175414
Amy V. Barker, Esq.
Ms. Beth Harper
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in its disposition of inmate Brandon Moman's open records request received by the facility on February 9, 2017. In his request, Mr. Moman requested to inspect "[t]he Extraordinary Incident Report [f]or A-dorm cell 116 in reference to a Medical Incident [w]here I (inmate Brandon Moman 175414) was vomiting blood. I am also requesting the officers log entry concerning this same matter. This took place on January 30, 2017. The Officer involved was ? C/O Rialyey [ sic ] during the evening shift."
On February 9, 2017, records custodian Beth Harper replied: "There are no documents responsive to your request. No EOR was prepared on this incident and there are no entries in the Dorm A log." Mr. Moman's appeal was received in this office on February 23, 2017. He argues that a report must have been written on this incident unless someone was "incompetent."
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of LSCC on March 6, 2017. She refers to Corrections Policy and Procedure (CPP) 8.6, 1 incorporated by reference in 501 KAR 6:020, which sets out when an Extraordinary Occurrence Report is to be filed. The most nearly applicable subsection of the CPP appears to be II.1.e., "Medical Incident Involving Possible Serious Physical Injury or Life Threatening Illness of Staff, Visitor or Inmate," "4) Medical Emergency."
Attached to LSCC's response are statements from the three employees who had involvement in the incident. It appears from these statements that a medical issue with Mr. Moman was brought to their attention, but no evidence of blood or other emergency existed. All three employees stated that they made no log entry or report because none appeared to be needed.
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. Given the written statements of the employees, it does not appear that Mr. Moman's medical condition seemed to constitute a life-threatening medical emergency that would have required LSCC to create a record. In the absence of legal authority requiring the creation of a record, or facts indicating it was created, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091. Accordingly, we find no violation of the Open Records Act.
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.
Footnotes
Footnotes
1 This document may be found at: http://corrections.ky.gov/communityinfo/Policies%20and%20Procedures/Doc…