Request By:
William Aucott # 132419
Beth Harper
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex (LSCC) violated the Kentucky Open Records Act when it denied an inmate's request for an Extraordinary Occurrence Report (EOR) and for the log of "A Dorm" entries. For the reasons stated below, we find that LSCC did not violate the act in its disposition of the request.
On February 13, 2017, William Aucott, an inmate at LSCC, requested a copy of the "extrao[r]dinary [Incident] Report for A-dorm cell 116 in reference to a medical incident where inmate William Aucott came in contact with [his cellmate's] bloody vomit. This took place on the evening of January 30, 2017. The Officer involved was c/o Reiley. I am also requesting the A-dorm log entry concerning this matter. Along with any other reports regarding this matter."
On February 14, 2017, a timely 1 response was sent by Beth Harper, Records Department, wherein she stated: "There are no documents responsive to your request. An EOR was not prepared on this incident and there are no entries in the A Dorm Log. " Mr. Aucott appealed this response by letter dated February 20, 2017. Mr. Aucott stated that the "horrific" medical incident involved the sick inmate, two correctional officers, one sergeant and Unit Administrator Smith, and that he believes that LSCC "is withholding these reports to impede or delay my access to the court [b]y denying they were ever filed."
Pursuant to KRS 61.880(2)(c), the burden of proof is with the agency to show that its disposition of the records request was not a violation of the Open Records Act. To meet that burden of proof, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to Mr. Aucott's appeal and explained:
Corrections Policy and Procedure (CPP) 8.6 indicates when an EOR would be prepared. The situation as observed by Tony Harris did not appear to fit any of the required circumstances for an EOR. The CPP is incorporated by reference in 501 KAR 6:020 and may be viewed at . . . None of the individuals involved created any of the records sought in the request. The log has been reviewed and there are no responsive entries. See memoranda of Malcom Smith, Tony Harris, and Donna Riley attached as [exhibits] 1, 2, and 3.
Attached to Ms. Barker's letter were the statements from Sgt. Tony Harris, CUA II Malcolm Smith, and C/O Donna Riley. Sgt. Harris and Mr. Smith related the incident of January 30, 2017, where Mr. Aucott claimed that his cellmate had thrown up on the toilet and the floor. Sgt. Harris responded to the complaint from Mr. Aucott. Sgt. Harris stated that he conducted a thorough search of the cell and found no blood, but that Mr. Aucott's cellmate stated that he had spit up some blood in the toilet earlier. Sgt. Harris stated that the he sent the cellmate "to medical to have him checked out." Harris and Smith were consistent in stating that an EOR was not required by CPP 8.6 for this incident. Mr. Smith states that he reviewed the dorm log and no entry was made by any person concerning the incident. Ms. Riley's statement related that she was not present for the incident on January 30, 2017, and that she did not make an entry in the log and did not write a report. A review of CPP 8.6 2 reveals that an EOR is required for, among other incidents, a medical emergency. Based on the statements of Harris and Smith, an EOR was not required to be created pursuant to CPP 8.6 as there was no medical emergency, and no log entries were made concerning the incident.
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 the medical condition of Mr. Aucott's cellmate constituted 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.
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