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 Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of inmate Chris Hawkins' open records request dated November 13, 2018, and received on November 16, 2018. For the reasons stated below, we find no violation of the Act.
Mr. Hawkins requested a copy of his "updated Resident Record Card. " On November 26, 2018, the facility provided the document with a notation as follows: "At present, your Resident Records Card is designated as 'unofficial, ' which means that the information contained on the Records Card is preliminary. The information reported on the 'unofficial' resident records card may not be accurate and is subject to final audit." Mr. Hawkins appealed to this office, arguing that he should have received an "official" Resident Record Card.
In response to this appeal, KSP provided an affidavit from records custodian Catherine Weicht, who reaffirmed that no "official" Resident Record card exists for Mr. Hawkins, stating: "In order to receive an 'official' Resident Record, inmates must request that the [ sic ] document from DOC Central Office in Frankfort, where the record would be created in response to the request."
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. The Act does not require a public agency to create a record in response to an open records request. OAG 76-375. While Mr. Hawkins is free to request the creation of an "official" Resident Record Card by the Department of Corrections pursuant to the Department's own procedures, we find no violation of the Act by KSP, in light of the fact that no document of that nature existed at the time of his open records 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.