Opinion
Opinion By: Andy Beshear, Attorney General; Taylor Payne, Assistant Attorney General
Summary : Eastern Kentucky Correctional Complex did not violate the Open Records Act where the record requested did not exist.
Open Records Decision
This appeal concerns whether the Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of inmate Sean Williams's request for "Part II of write-up AC-2016-00828." For the reasons stated below, we find that EKCC did not violate the Open Records Act because the requested record did not exist.
On October 2, 2017, Williams requested a copy of "Part II of write-up AC-2016-00828." He also requested that "[i]f this write-up has been dismissed, please indicate this in the space below." On the same day, EKCC responded and indicated that a write-up AC-2016-00828 did not exist in inmate's file, and that the Warden was the only person who had access to dismissed write-ups.
On October 10, 2017, Williams initiated this appeal. He included a copy of a Disciplinary Report Form, Part I entitled "Write-Up and Investigation" and given the DR# of AC-2016-00828. He requests a decision finding that EKCC must comply with his request and produce Part II of the form.
EKCC responded and informs this office that Part II of a Disciplinary Report Form details "any assigned penalization" following a hearing before an Adjustment Officer regarding the write-up and investigation. Upon receiving this appeal, EKCC consulted the warden's office and was informed the disciplinary write-up was dismissed and therefore, Part II of the Disciplinary Report Form was never completed. An updated version of Part I, which indicated the disciplinary report was dismissed, was provided to Williams at that time.
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 nothing in the record indicates that the requested record should exist, we find no violation of the 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.