Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in the disposition of inmate Rodney Smith's June 22, 2017, request for a copy of a "'seize property' form from June 13, 2017" and a "'property restriction'" form relating to him. For the reasons that follow, we find no violation of the Act.
Mr. Smith's request was received by the facility on June 28, 2017. On August 3, 2017, KSP responded:
Pursuant to KRS 197.025(7), the Department of Corrections has 5 business days from the date it receives an open records request to determine if the records shall be released. This time may be extended, however, if the records are in use, storage or not otherwise available.
Additional time is needed to review the records requested due to the amount of research required, the length of period given, and it is not readily available to be retrieved at this time.
Therefore, the Kentucky State Penitentiary will require additional time to retrieve and review the records you request and will issue a final response to you on or before August 10, 2017 .
(Emphasis in original.) On August 10, 2017, the facility provided Mr. Smith with a "Behavioral Control Form" and advised that a "Seize Property Form" did not exist.
Mr. Smith's appeal was received in this office on August 14, 2017. He stated that the document he received was unrelated to what he requested.
On August 24, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of KSP. She advises that the Open Records Coordinator misunderstood which property restriction form Mr. Smith was requesting and therefore provided him the most recent one. Mr. Smith has since been provided the correct Behavioral Control Form, dated June 13, 2017, which reflects the property restriction in question. Accordingly, we consider this appeal moot with regard to the property restriction form. 04-ORD-046; 03-ORD-087; OAG 91-140.
KSP further explains that a "seized property" record is used "when an inmate has more property than allowed or has property that does not belong to him," as opposed to "restricted property," which refers to temporary removal of an inmate's property due to a behavioral issue. Since no excess property was seized from Mr. Smith, there is no seized property form. 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. Therefore, 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 proceedings.