Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of a records request by inmate Christopher Meadors ("Appellant") for a copy of the appeal he purportedly filed for disciplinary report LLCC-2017-02922. For the reasons stated below, we find that KSP did not violate the Open Records Act.
On June 13, 2018, Appellant made an open records request for a "copy of the appeal [he] filed for Disciplinary Report # LLCC-2017-02922." Catherine Weicht, KSP, timely responded on June 14, 2018, denying the request. Ms. Weicht stated that "no such appeal exists associated with the disciplinary report you provided in your inmate records in KOMS." Ms. Weicht further provided a letter from Heather McManis, Offender Record Supervisor, Luther Luckett Correctional Complex, where Ms. McManis had responded to the same request on April 10, 2018. Ms. McManis stated:
This correspondence is in reference to your open records request concerning an appeal for the Category 7-4 disciplinary that you received on 10/24/2017. Please be advised that an appeal for this disciplinary was not attached in our KOMS system. I spoke to the Warden's secretary and there appears to be no copy of the appeal at this time. I spoke to your case management worker and he stated that his is the only document you are requesting. It is for the above reason that I have closed out the request as we do not have a copy of an appeal for this disciplinary report.
On appeal, Julie C. Foster, III, attorney, Justice & Public Safety Cabinet, responded on behalf of KSP, and reiterated KSP's response that no responsive records exist.
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. Given Ms. McManis' efforts to determine the existence of the requested records, it does not appear that the requested record exists. 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.