Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether inmate Kenny Goben's various open records requests to Eastern Kentucky Correctional Complex, Kentucky State Reformatory, Blackburn Correctional Complex, and Roederer Correctional Complex were appropriately denied. For the reasons stated below, we find no violation of the Act.
By identical letters to each institution dated August 28, 2018, Appellant requested the pay grade and job categories of the landscaping/road crew, sewer plant operator, water plant operator, and boiler room operator. He further requested "a copy of the written [a]pproval" from the Deputy for hourly employees. Appellant included the response from Eastern Kentucky Correctional Complex (EKCC), but did not include responses from Kentucky State Reformatory (KSR), Blackburn Correctional Complex (BCC), or Roederer Correctional Complex (RCC).
EKCC timely responded on August 29, 2018, that it would not grant the request for pay grade and job category records, as this was a request for "information" and not for specific records, which is outside the open records law. EKCC's denial was proper. The Kentucky Open Records Act addresses requests for records, not requests for information. "Our position is premised on the notion that '[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.'" 02-ORD-88 (quoting 95-ORD-131.). Appellant requested information rather than specific records, and an agency is not obligated to honor requests for information. Accordingly, EKCC appropriately denied Appellant's request.
Further, though EKCC did not respond to Appellant's second request for a copy of the written approval, EKCC has now represented that 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 the record does not indicate that the requested copy of the written approval should exist or should be in EKCC's possession, we find no violation of the Act.
As to the alleged non-responses from Kentucky State Reformatory (KSR), Blackburn Correctional Complex (BCC), or Roederer Correctional Complex (RCC), the Department of Corrections has submitted proof that each institution did in fact respond. Appellant is an inmate confined in a penal facility and KRS 197.025(3) requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." In relevant part, KRS 61.880 provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection . If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
KRS 61.880(2)(a) (emphasis added). 40 KAR 1:030, Section 1, further provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial , if the agency provided a denial." 40 KAR 1:030, § 1 (emphasis added).
Accordingly, in order for this office to review the actions of a public agency, the record must contain the written request and the agency's written response. Appellant failed to complete the record because he did not attach the responses from KSR, BCC, or RCC. Therefore, this office may not consider the alleged open records violations by these institutions. See 40 KAR 1:030, § 1.
A party aggrieved by this decision shall 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.