Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Summary : The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the requester and the Grant County Detention Center regarding whether the Detention Center received the initial request, and also whether the records provided satisfy that request. The Detention Center violated procedural requirement of KRS 61.880(1) by not responding within three days to a follow-up request. The Detention Center cannot afford a requester access to a record that it does not have or that does not exist, and discharged its duty under the Open Records Act by affirmatively so stating.
Open Records Decision
The issue presented in this appeal is whether the Grant County Detention Center ("Detention Center") violated the Open Records Act in its disposition of Grant Axon's open records request for policies and procedures, handbooks, and agreements relating to inmate housing. For the reasons stated below, we find that the Detention Center did not violate the Act when it denied the request for agreements as no such records exist. However, this office cannot resolve the factual dispute as to whether the Detention Center received the initial request, nor can it resolve the dispute as to whether the records provided satisfy all parts of the request. The Detention Center violated the procedural requirement of KRS 61.880(1) by not responding to a follow-up request within three days after receipt.
In his request of June 12, 2018, Grant Axon, ("Appellant") requested copies of:
1) The current Policies and Procedures Manual for the Grant County Detention Center;
2) The Policies and Procedures Manuals for the Grant County Detention Center which were in effect during the years of 2016 and 2017;
3) Any and all agreements between the Grant County Detention Center and the Kentucky Department of Corrections relating to the housing of state inmates and all services and maintenance to be provided to said prisoners for the years of 2016 to present;
4) The current Inmate Handbook for the Grant County Detention Center; and
5) The Inmate Handbooks for the Grant County Detention Center which were in effect during the years of 2016 and 2017.
Appellant sent a second letter to the Detention Center, dated June 26, 2018, including a copy of the first request, to follow up on that request. Having received no response to his request or follow-up letter, Appellant filed his appeal with this office on July 2, 2018.
Joe Taylor, Grant County Attorney, responded on behalf of the Detention Center by letter dated July 12, 2018. The response included an email from Mr. Taylor to Appellant, July 9, 2018, stating that Lt. Carolyn Wilson ordinarily responds to open records requests for the Detention Center but that she had been on sick leave. The response stated that Lt. Wilson said she had not received the original request, but was made aware of the request by Appellant's follow-up letter of June 26. Lt. Wilson stated that she had checked the faxes received but that "we did not receive [Appellant's request of June 12, 2018]." The response included a letter from Lt. Wilson, July 12, 2018, stating that the "requested information" had been mailed to Appellant on July 6, 2018. A copy of the request was attached to that letter with check marks by items 1, 2, 4, and 5. A notation by item # 3 stated, "No such agreement per D.O.C. -- state law." Mr. Taylor further explained in his email to Appellant that "there are no such written agreements as those you requested, so they cannot be provided. I have sent a request to DOC to identify what statutes and/or KARs might apply to your question, and I will forward the information when I have it myself."
In response to a query from this office as to whether the records provided satisfied his request, Appellant stated that he had received a copy of the "check marked" document, one inmate handbook with a revision date of June 2015, and one policy manual with a revision date of September 2016. Appellant did not receive an explanation as to whether these two documents satisfied requests 1, 2, 4, and 5.
Receipt of request . In relevant part, KRS 61.880(1) provides:
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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See 12-ORD- 204. In the absence of incontrovertible proof (such as a return receipt following delivery of a certified letter) that the Detention Center actually received Appellant's request, 1 we assign no error to the Detention Center's lack of response to that request. 02-ORD-1 (the Attorney General "is not equipped to resolve a factual dispute concerning the actual delivery" of an open records request); 05-ORD-252 (if request did not reach the agency, the agency "cannot be faulted for its failure to respond"); accord , 15-ORD-014, page 3, note 2. In the absence of proof that the Detention Center received the original request, this office is unable to determine that a violation of KRS 61.880(1) occurred with respect to Appellant's initial request, dated June 12, 2018.
With respect to the follow-up request of June 26, 2018, a copy of the fax receipt shows that it was successfully sent on June 26, and the copy of that letter provided to us by Mr. Taylor shows a fax receipt date of June 26, 2018. Pursuant to KRS 61.880(1), the Detention Center should have responded to the request no later than June 29, 2018. Lt. Wilson's letter stated that she had the response mailed on July 6, 2018. The Detention Center thus violated the procedural requirement of KRS 61.880(1) by not responding to the request within three days.
Did response satisfy the Open Records Act? We next address the substantive issue. Appellant is uncertain that all records responsive to his request have been provided. Although he made requests for current polices and handbooks, and policies and handbooks in effect during 2016 and 2017, he received only one policy and procedure manual, revision date of September 2016, and one inmate handbook, revision date of June 2015. The Detention Center's response to this office advised that it had provided all records responsive to his request. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, (citing OAG 89-81, p. 3).
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
Item # 3 . In regard to Item 3, the request for agreements between the Detention Center and the Kentucky Department of Corrections relating to the housing of state inmates, Mr. Taylor responded to the appeal by stating that there are no such written agreements, but that he had sent a request to the Department of Corrections to identify what statutes or regulations might apply to this item. Likewise, Lt. Wilson's response of July 6 stated that there was no such agreement.
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. Therefore, we find no violation of the Open Records Act with respect to this item of Appellant's request.
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.
Footnotes
Footnotes
1 The Open Records Act does not require a requester to submit his request by certified mail, return receipt requested. Standard mail delivery is sufficient under the Act. KRS 61.872(2). A return receipt for certified mail would, however, provide proof of actual delivery of the request. 08-ORD-007, p. 2, n. 1.