Request By:
Stacey Spencer, # 258494
Kimberly Campbell, KSR
Oran S. McFarlan, III
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Reformatory ("KSR") violated the Open Records Act in its disposition of inmate Stacy Spencer's two open records requests received by the facility on March 24, 2017. For the reasons stated below, we find that KSR did not violate the Act.
Mr. Spencer made a request to inspect copies of "the report Lt. Ronnie Whittaker submitted in response to the incident of October 21, 2016 . . . AND a copy of the report that states OIS Hilary Rucker's location when she called Officer Gambrel 10/21/2016 to request that Inmate Stacey Spencer # 258494 be searched." Mr. Spencer also made another open records request 1 on March 24, 2017, wherein he requested to receive a copy of "the telephone recording used to report Stacey Spencer # 258494 was given a black object by another inmate October 21, 2016 at 10:30 a.m. when OIS Hilary Rucker called Officer Gambrel to search inmate Spencer." Kim Campbell, Offender Information Specialist, KSR, timely responded to these requests by denying that the records existed. Mr. Spencer appealed Ms. Campbell's denial, claiming that "they are guilty of tampering with physical evidence. . ."
On appeal, Oran S. McFarlan, III, attorney, Justice & Public Safety Cabinet, responded on behalf of the Cabinet. He explained that "In her responses, Ms. Campbell denied the requests by expressly stating that the records did not exist." Mr. McFarlan provided an affidavit from Ms. Campbell explaining her actions in responding to these requests for records: "I [first] conducted a search for the requested reports by speaking with KSR's Internal Affairs branch (IA), which had been assigned to investigate the incident referred to in Mr. Spencer's request. IA confirmed that Lt. Whittaker did not submit a report about the incident at issue and there was no report stating Ms. Rucker's location at the time of the alleged phone call to Officer Gambrel." Campbell Affidavit, at P 2. Ms. Campbell's affidavit states that she then spoke with Lt. Whittaker, "who confirmed that he did not submit a report because his role in the incident was limited to escorting one or more inmates to segregation." Campbell Affidavit, at P 2. Regarding the recording of a staff telephone call, Ms. Campbell explained that "[i]nternal phone calls between staff members are not routinely recorded at KSR and I confirmed that the institution does not have a recording of any 10/21/16 phone conversation between Ms. Rucker and Officer Gambrel." Campbell Affidavit, at P 3. Ms. Campbell summed up her efforts by stating that she "conducted a search for each record requested by Mr. Spencer and determined that none of the requested records existed." Campbell Affidavit, at P 4.
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 Ms. Campbell's efforts to determine the existence of the requested records, it does not appear that the requested records were ever created. In the absence of legal authority requiring the creation of the records, or facts indicating the records were 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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