Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
This appeal contains three separate requests. Appellant Brian Edmond sent the same request to three separate entities within the Justice and Public Safety Cabinet ("JPSC"). The issue on appeal is whether any of these entities violated the Open Records Act when each allegedly failed to respond to a request for records from Appellant.
On March 1, 2019, Appellant submitted a request for records to John Tilley, Secretary of the Justice and Public Safety Cabinet; the Director of Adult Institutions at the Department of Corrections ("DOC"); and David Green, Warden at Eastern Kentucky Correctional Complex ("EKCC"). The requests are identical, each asking for a copy of the letter Appellant sent to each office on February 19, 2019, and that entity's response. He initiated these appeals on March 10, 2019. DOC responded to each of these appeals separately.
As to the request sent to Secretary Tilley, though the response contained a procedural violation, no substantive violation of the Act occurred. The Secretary failed to respond to Appellant's March 1, 2019, request. This failure to respond to an open records request in a proper and timely fashion constitutes a violation of KRS 61.880(1). However, DOC cured that deficiency in its response to this appeal. It confirmed that the records requested did not exist. Neither the Secretary nor DOC can produce nonexistent records for inspection or copying. See Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. The Attorney General has long recognized that a public agency cannot grant a requester access to nonexistent records. 07-ORD-190, p.6; 06-ORD-040; 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150; 09-ORD-088; 04-ORD-043. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. DOC explained that letters from inmates to the Secretary are not kept, but are forwarded to DOC, and the Secretary does not issue his own response to letters from inmates. DOC responded that, pursuant to their retention schedule, 1 it does not keep these letters and no such letter was found at DOC after searching. DOC affirmatively stated that the requested records do not exist and stated where and how it searched for the records. Accordingly, we find that DOC substantively complied with the requirements of the Open Records Act.
As to the request to EKCC, we find that the appeal was premature, adopting the reasoning of 11-ORD-073 (copy attached). Since Appellant is an inmate confined in a penal facility, KRS 197.025(7) grants DOC five days, excluding weekends and legal holidays, to respond to his request. Mr. Edmonds initiated his appeal before five business days had elapsed from DOC's receipt of his request, 2 and his appeal was therefore premature.
Regarding the request to the Director of Adult Institutions at DOC, though there was a procedural violation, there was no substantive violation of the Act. DOC indicated that the records custodian mistakenly believed Appellant's March 1, 2019, request was a duplicate and discarded it. For the reasons discussed above, this failure to respond to an open records request in a proper and timely fashion constitutes a violation of KRS 61.880(1). However, DOC again cured this deficiency in its response. DOC confirmed that responsive records were located and are available for Appellant to inspect. Therefore, this request is now moot. 40 KAR 1:030, Section 6 defines moot complaints as follows: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request has been denied but is later granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5 (citing OAG 91-140).
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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