Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Summary : Kentucky State Penitentiary did not violate the Open Records Act by failing to provide records that do not exist.
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act when it refused to produce for inspection disposition of correspondence with an ADA coordinator upon request of inmate James Harrison. For the reasons stated below, this office finds that KSP properly refused to provide the requested records because the requested records did not exist.
On July 1, 2019, Appellant requested KSP provide for inspection "the dispositions concerning my correspondence to ADA coordinator Roger Mitchell dated June 24, 2910[] and those dated June 6, 2019[,] and June 19, 2019." On July 8, 2019, Appellant was given an opportunity to review the correspondence he had sent to the Roger Mitchell, but KSP stated that there was no "disposition" resulting from the correspondence and Appellant refused to inspect the records provided. On July 9, 2019, KSP responded in writing that it provided Appellant "the opportunity to inspect the three (3) correspondence to Roger Mitchell . . . [and] per Mr. Mitchell, no response was deemed necessary by him to respond to them." This appeal followed. The Justice and Public Safety Cabinet responded on behalf of KSP on July 30, 2019, and again affirmed that no such "disposition" exists.
KSP properly denied Appellant's request for records that do not exist and affirmed the records do not exist in its response to this appeal. KSP cannot 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; 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. Here, KSP confirmed with Mr. Mitchell that he did not respond to Appellant's earlier correspondence and there was no "disposition" as a result of the letter. On appeal, KSP again confirmed that no such records exist. Because KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no responsive records existed in the custody or possession of the agency. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030.
Finally, Appellant has submitted multiple letters and documents along with his open records appeal detailing various grievances with KSP. These issues may not be answered or adjudicated in an open records appeal. This office may only determine whether KSP complied with the Open Records Act. 99-ORD-121.
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.