Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in its disposition of inmate Keith Birdsong's open records request, dated August 10, 2018, for records and/or reports related to an incident, wherein Birdsong alleges he was assaulted by a correctional officer at LSCC. For the following reasons we find no violation of the Act.
On August 10, 2018, Birdsong submitted an open records request to LSCC for records and or documents relating to an investigation of an alleged incident involving Birdsong and an LSCC correctional officer. On August 14, 2018, LSCC responded, denying Birdsong's request pursuant to KRS 61.872(4), on the grounds that LSCC ". . .does not have custody of the record requested." LSCC further informed Birdsong to obtain a copy of the records he would need to request copies from the Eastern Kentucky Correctional Complex ("EKCC") and provided the address.
On August 17, 2018, Birdsong initiated this appeal. In his appeal, Birdsong specifically questions why the investigative record(s) are not available in the Kentucky Offender Management System ("KOMS").
LSCC responded to Birdsong's appeal on September 5, 2018. LSCC states that "[t]he staff from Frankfort who interviewed inmate Birdsong were with the [IIB] at the Justice and Public Safety Cabinet and performed the investigation for the Department of Corrections. These investigation records are not maintained in KOMS and are not accessible to institutional staff at LSCC." In its response, LSCC further clarified that "LSCC staff inadvertently gave incorrect contact information for the investigation," and that "if inmate Birdsong seeks records from the investigation performed by staff from Frankfort who interviewed him, he needs to send his written request to [IIB]."
It is well-settled that a public agency "cannot afford a requester access to a record that it does not have or which does not exist." See 07-ORD-190, 06-ORD-040, 99-ORD-98, 09-ORD-129. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150, 04-ORD-43, 09-ORD-088, 14-ORD-072, 14-ORD-094, 15-ORD-046. An agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 11-ORD-209, pp. 1, 5. In the instant appeal, LSCC affirmatively advised Birdsong that it was not in possession of any records generated as a result of the investigation of the alleged incident between Birdsong and an LSCC correctional officer. 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 per 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.