Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in its disposition of inmate Kurt Lowe's open records request received by the facility on October 13, 2017. For the reasons stated below, we find that NTC did not violate the Act.
Mr. Lowe requested to inspect the following records:
? ALL KYDOC records that support or prove that, the KYDOC and its institutions, made payment(s) to the Boone County Circuit Clerk from the inmate account of Kurt J. Lowe # 284794 between the dates of 8/2/16 and 10/12/17. The records sought are up to and including but not limited to; inmate account records, signed authorizations or CPO's (cash-pay-orders), invoices, bills or billing, notices, checks or cashed checks, bank statements, or any other records supporting or proving that, the KYDOC deducted money from said inmate account and made payment(s) to the Boone Circuit Clerk between 8/2/16 and 10/12/17.
Kimberly Huddleston, Fiscal Manager, NTC, timely responded to the request by letter dated October 16, 2017. Ms. Huddleston stated that NTC "does not have custody or control of the inmate account records" requested by Mr. Lowe. She cited KRS 61.872(4) 1 and explained that Mr. Lowe would need to contact the open records coordinator at Luther Luckett Correctional Complex ("LLCC") and Green River Correctional Complex ("GRCC"). She provided the mailing addresses for the open records coordinators at those correctional institutions. Mr. Lowe appealed the response and claimed that Ms. Huddleston, NTC, and the Kentucky Department of Corrections had committed multiple criminal violations in the disposition of his open records request.
On appeal, Oran S. McFarlan, III, attorney, Justice & Public Safety Cabinet, responded on behalf of NTC and provided an affidavit from Ms. Huddleston. The affidavit explained that, as NTC's Fiscal Manager, Ms. Huddleston has custody and control of NTC's inmate account records, but not the inmate account records of inmates at other institutions. Her affidavit explained that she had searched NTC's records and found that, since September 21, 2017, which is the date that Mr. Lowe was transferred to NTC from LLCC, no money had been removed from Mr. Lowe's account to pay the Boone County Circuit Clerk. The affidavit stated that "[a] review of Mr. Lowe's external movements within KDOC [Kentucky Department of Corrections] showed that any money removed from his account between August 2, 2016 and October 12, 2017 to pay the Boone County Circuit Clerk would have occurred while he was housed at the Green River Correctional Complex (from August 2, 2016 to March 10, 2017) and/or the Luther Luckett Correctional Complex (from March 10, 2017 to September 21, 2017)." Ms. Huddleston's affidavit explained that she does not have access to the inmate account records maintained by the other institutions (LLCC and GRCC) and that is why she denied his request and referred him to the open records coordinators at those correctional institutions.
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. Ms. Huddleston, pursuant to KRS 61.872(4), notified Mr. Lowe that NTC did not have the requested records and furnished him the name and location of those custodians of records where the records may exist. In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, or were in NTC's possession, we find that NTC has met its burden of proof, under KRS 61.880(2)(c), to sustain its disposition of Mr. Lowe's request. See 11-ORD-091. Accordingly, we find no violation of the Open Records Act.
Also, as noted in Ms. McFarlan's response, an open records appeal is not the proper forum for Mr. Lowe to raise complaints that are outside the statutory authority granted to this Office under the Open Records Act. The Office of the Attorney General is granted authority under KRS 61.880(2) to "review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. We therefore make no decision regarding the other complaints by Mr. Lowe that call for actions beyond our authority.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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