Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of inmate Claude Isaac's open records request for records relating to the denial of a visitor to EKCC. For the reasons stated below, we find that EKCC did not violate the Act.
In his request, dated August 13, 2017, Mr. Isaac asked to inspect:
[P]ertaining to the rejections and, or denial of my visitor (s) during the last week of April, 2017 and May, 2017, to include any and all related documents directed to me and/or my visitor (s) and/or any third parties or persons including staff, this include extraoccurance reports, occurrance reports, incident/reports and/or any other tangible items, material and/or documentation. [ sic ]
Mr. Isaac's appeal, dated September 7, 2017, claimed that he had not received a response to his request.
Ms. Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of EKCC, by letter dated October 10, 2017. Ms. Barker provided an email, dated September 28, 2017, from Tammy Skinner, Offender Information Specialist/Open Records Coordinator, EKCC, in which Ms. Skinner stated that she had reviewed the open records request logbook and concluded that "this request has not been received in the Records Department." Ms. Skinner also provided a memorandum, October 2, 2017, in which she timely1 responded to the request after it was received by EKCC on September 28, 2017, after Appellant filed his open records appeal:
I have attached four pages responsive to your request. The visitor's address and driver license number is redacted pursuant to KRS 61.878(1)(a) since they are information of a personal nature the public disclosure of which constitutes an unwarranted invasion of personal privacy and creates a risk of identity theft.
I verified with Acting Deputy Warden Whitt that no Extraordinary Occurrence Reports were created for the terminated visit on 4/29/2017.
If you would like to receive copies of the documents provided, please forward a signed money authorization transfer form for $. 10 for each page.
We address first Appellant's claim that the agency failed to respond to his open records request. In her response, Ms. Barker advised that, after receipt of the appeal, EKCC staff reviewed the request attached to the appeal and determined that the request had not been received at EKCC. Ms. Skinner's email of September 28, 2017, attested that the request had not been received in the Records Department. Insufficient information is presented in this appeal for this Office to resolve the factual dispute concerning the actual delivery and receipt of Appellant's open records request, thus, we make no finding in this regard. See 03-ORD-061. Obviously, an agency cannot respond to a request it does not receive. Once EKCC received the request on September 28, 2017, it responded in a timely fashion.
Regarding the requested occurrence reports, EKCC reported to Appellant, by memorandum of October 2, 2017, that it had determined that no such reports were created for the terminated visit of April 29, 2017. 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. 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.
Once EKCC received the request on September 28, it timely responded to the request by making available the responsive records, and affirmatively advising Appellant that no occurrence reports were created. 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 EKCC has five calendar days, excepting Saturdays, Sundays and legal holidays pursuant to KRS 197.025(7) to provide a response to open records requests from inmates.