Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Green River Correctional Complex ("GRCC") violated the Open Records Act in its disposition of inmate Lonnie Harris' October 22, 2018, request for "2-copies of the photo sent to me on 4/7/2017 from Melda Coffman that is in a frame that says warrior where I am shirtless." For the reasons stated below, we find no violation of the Act.
GRCC denied the request on October 24, 2018, stating that "there is no public record maintained by the Department of Corrections responsive to your request" because "[t]he date listed above is too old for GRCC to retrieve JPay 1 pictures or it does not exist. JPay pictures and messages can only be retrieved for the prior six months of the current date." GRCC also informed Mr. Harris that he already possessed a photograph of himself on his institutional identification card and "[t]he Department will not provide additional copies for reason that multiple copies of a computer generated photograph could be used to fabricate identification, facilitate escape, or other uses that may constitute a threat to institutional security in accordance with KRS 197.025(1)." This office received Mr. Harris' appeal on November 1, 2018.
In response to the appeal, GRCC provided a copy of an e-mail from Teresa K. Moore, Offender Information Specialist, who stated as follows:
Our office (Offender Records) does not have access to print pictures from inmate's [ sic ] JPay accounts. The pictures are printed by Annetra Lovan, Postal Tech II. I have spoken with Ms. Lovan. . .. She informed me that we only have access to pictures on JPay accounts from the current date back six months. According to Inmate Harris' request, he was requesting a picture from 4/7/17 which is too old to be accessed at our institution.
GRCC additionally cited 16-ORD-267 in support of its argument that allowing an inmate to possess more than one photograph of himself would create a security risk under KRS 197.025(1) . 2
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 this appeal, GRCC has satisfactorily explained that a photograph dated April 7, 2017, would no longer exist in the facility's possession, as it no longer has access to such photographs under its contract with JPay. "It is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency in deciding what records need to be created or retained." 08-ORD-206. Nor does the Open Records Act "impose an obligation on agencies to create, procure, or retrieve a record" of a private contractor which is not within the agency's possession, custody, or control. 99-ORD-202; see also 06-ORD-201.
Therefore, because the photograph no longer exists in GRCC's possession, custody, or control, we find no violation of the Act. Since the nonexistence of the requested record is dispositive of this appeal, we need not address GRCC's argument under KRS 197.025(1).
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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