Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
Summary : Department of Corrections did not violate the Open Records Act where the records requested did not exist.
Open Records Decision
The issue presented in this appeal is whether the Department of Corrections violated the Open Records Act in its disposition of Rev Russell's April 24, 2018, request for certain records relating to inmate procedures. For the reasons stated below, we find no violation of the Act.
Mr. Russell's request was divided into five items: "[a] list of all inmates awaiting excision" ; "[a] list of cost of each inmate to house and take care of their needs while awaiting excision" ; "[d]ocuments showing the cost of doing an excision [and a]ny and all permits required"; "[a] list of all staff trained in excisions [and a]ll documents showing all the forms of training" ; and, lastly, "[a] list showing the last 48 hours before the inmate is set to be executed." In response to the final item of the request, the Department of Corrections has made available to Mr. Russell a copy of the applicable administrative regulations dealing with the protocols and procedures for executions, which it states are the only responsive records that exist. This being the case, we consider this appeal moot with regard to the last item of Mr. Russell's request. 04-ORD-046; 03-ORD-087; OAG 91-140.
As to the remainder of Mr. Russell's request, the Department responded on May 1, 2018, that the Department of Corrections maintained no documents responsive to the request. Mr. Russell initiated this appeal on May 15, 2018, arguing: "If this is true then how is accountability of each inmate and their whereabouts done. How do you know when or if an excision will be done? There has to be some form of records and/or documents showing the info requested of them." A supplemental response issued by the Department on May 24, 2018, confirmed that "[a] reasonable search was made for the excision documents requested in items 1-4 and the Department of Corrections central office ? was unable to locate any documents responsive to those requests. The record does not exist because the requested excision documents have not been created by the Department."
"Excision" is a word derived from the Latin prefix ex- meaning "out of" and the Latin verb cfdere , "to cut." American Heritage College Dictionary , at 487, 485 (4th ed. 2002). In the medical sense, "[e]xcision is defined as the surgical removal (as of a diseased part)." Carr v. Blue Cross of Washington & Alaska, 971 P.2d 102 (Wash. App. 1999) (citing Webster's Third New International Dictionary at 792 (1969)); see also OAG 76-722 ("if the legislature, even in the name of progress, is to engage in a legislative excision of a county jailer's duties, the legislative surgery must be carefully and precisely executed under the basic limitations outlined in Johnson v. Commonwealth , 1 otherwise the patient (constitutional office) will suffer irrevocably").
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. We know of no reason why the Department of Corrections, which is not a health care provider and obtains inmate medical services on a contractual basis, 2 would be required to maintain records relating to waiting lists, costs, or staff training for specific medical procedures such as excision. As the Department possesses no such records, 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.
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