Request By:
Brandon Bowman, # 189165
Tracy Nietzel
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center (NTC) violated the Open Records Act by denying an inmate's request for copies of phone call recordings and transcripts of those phone calls. Based on the agency's response to the inmate's appeal, we find that NTC did not violate the Open Records Act.
In an open records request dated July 3, 2017, inmate Brandon Bowman requested a copy of recordings of phone calls, and transcripts of those phone calls, on a specific date to a specific number. 1 NTC denied the request because the "records/phone calls requested are intelligence and investigative reports maintained by the Department of Corrections, a criminal justice agency, and are exempt from disclosure pursuant to KRS 61.878(1) (l) and KRS 17.150(2) since the prosecution is not completed and a determination not to prosecute has not been made . . ." Mr. Bowman's appeal claimed that "all prison disciplinary proceedings have been completed" and so there is no reason not to disclose the requested records.
Ms. Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of NTC. Ms. Barker provided a memorandum from NTC, dated August 8, 2017, to Mr. Bowman which offered the requested recordings upon appropriate authorization of payment for the recordings from his inmate account. The memorandum further stated that "No written transcripts exist for the phone calls because none were created." Ms. Barker opined that this appeal is moot as all existing responsive records have been offered to the requester upon payment of the copying costs. 2
Analysis . In regards to the request for recordings of the phone calls, we find that the request has been satisfied by offering those recordings upon payment of the cost of copying the recordings. This appeal would otherwise be moot but for the denial of the transcripts of the phone calls. The agency has stated that written transcripts of the phone calls were not created. 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. Since there is nothing in the record to indicate that the requested transcripts should exist or should be in NTC's possession, we find no violation of the Act.
The agency response opined that the appeal is moot as to the requested records because all existing records have been provided and because there are no transcripts of the phone calls. This office has previously determined that "unless all records identified in an open records request are released . . . the issue before the Attorney General is not moot. " 09-ORD-007, p.5. As NTC denied the request for transcripts, this appeal is not moot and we were required to review whether the agency's denial of the transcripts was a 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