Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Office of the Commonwealth's Attorney for the 30th Judicial Circuit ("Commonwealth's Attorney") violated the Open Records Act in its disposition of inmate Gerald McKinney's open records request for records relating to recalculation of his jail time. For the reasons stated below, we find that the Commonwealth's Attorney did not substantively violate the Act.
In 2001, Thomas Wine, then a judge of the Jefferson Circuit Court, denied a motion by inmate Gerald McKinney regarding the calculation of his jail time. On November 14, 2017, Mr. McKinney wrote a letter to Mr. Wine, in his current capacity as the Commonwealth's Attorney for the 30th Judicial Circuit, again asking him to change the jail time calculation. On November 16, 2017, only two days after the date of his first letter, Mr. McKinney sent an open records request to the Commonwealth's Attorney asking for a copy of his letter of November 14, 2017, and the response to that letter. Having received no response to his open records request, Mr. McKinney filed this open records appeal, received by this Office on November 29, 2017.
Erwin Roberts, First Assistant Commonwealth's Attorney, responded to the open records appeal on behalf of the Commonwealth's Attorney by letter dated December 5, 2017. Mr. Roberts explained that, after his office received the November 16th open records request, their "initial review" did not find the November 14th letter. After receiving notice of the open records appeal, the November 14th letter was found. Mr. Roberts explained that "[i]t is likely that the close proximity in time (2 days) between the November 14, 2017 letter that was the subject of the open records request and the November 16, 2017 open records request caused the letter to not be discovered during the initial review." Mr. Roberts returned Mr. McKinney's November 14th letter to him, and explained that the Commonwealth's Attorney had not otherwise responded to his request for recalculation of his jail time "as the issues raised in [Mr. MkKinney's] letter [regarding recalculation of jail time] can only be addressed by the court."
In failing to respond to Mr. McKinney's open records request in a timely fashion, the Commonwealth's Attorney committed a procedural violation of KRS 61.880(1), which states in pertinent part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
As all responsive records have now been provided to Mr. McKinney, we will not further belabor the issue of the agency's delay in responding to the open records request.
Regarding the letter of response that Mr. McKinney requested, Mr. Roberts explained in his December 5, 2017, letter that a response was not sent to Mr. McKinney regarding his request for Mr. Wine to recalculate his jail time because such recalculation "can only be addressed by the court." It is clear from the record that Mr. Roberts was stating that there was no letter from the Commonwealth's Attorney responding to Mr. McKinney's request for recalculation of his jail 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. 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. 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 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.