Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of Juvenile Justice ("Department") violated the Open Records Act in its disposition of Northpoint Training Center inmate James Ingram's request dated May 4, 2018, for "a copy of the Letter I mailed to your office May 2, 2018; and the Response your office made in response to my letter." Mr. Ingram initiated this appeal based on the Department's alleged failure to make a timely response to his request.
In a response to this appeal dated May 22, 2018, the Department states, with a supporting affidavit, that Mr. Ingram's correspondence of May 2, 2018, was mistakenly forwarded to the Department of Corrections due to the return address and inmate number appearing on it, and therefore the Department never responded to the letter. The Department further states, with a supporting affidavit, that Mr. Ingram's open records request was never received prior to this appeal. Finally, the Department indicates that a copy of the correspondence requested by Mr. Ingram has now been provided to him.
Inasmuch as the Department has now sent Mr. Ingram a copy of his May 2, 2018, letter as requested, this appeal is moot as to that document. 04-ORD-046; 03-ORD-087; OAG 91-140. As to the requested response to his letter, the Department has adequately explained why no such record exists. 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 it also appears that Mr. Ingram's open records request was not received by the Department, we do not find a failure to respond in a timely manner. Accordingly, 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 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.