Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Franklin County Regional Jail did not violate Open Records Act by not providing nonexistent records. In view of conflicting evidence as to when appellant's request for public records was received by records custodian, the Attorney General cannot conclusively resolve the issue of whether response was timely, and therefore finds no violation.
Open Records Decision
The question presented in this appeal is whether the Franklin County Regional Jail ("the Jail") violated the Open Records Act in regard to inmate Winston Wright's July 24, 2019, request for (1) video surveillance related to a certain incident on July 5, 2019, (2) "[a]ny statements of witnesses requested by myself in response to the investigative officers [ sic ] inquiry," (3) any related "written reports and or conclusions," and (4) copies of certain electronic requests made by Mr. Wright on the Jail's Tel-Mate computer system. For the reasons that follow, we do not find a violation of the Act.
Mr. Wright initiated this appeal on or about August 18, 2019, claiming to have received no response to his request. This office received his appeal on August 21, 2019. In its response to the appeal, the Jail denied having previously received Mr. Wright's request, but granted him access to items 1, 3, and 4, and stated that no responsive records existed for item 2. In reply, Mr. Wright insisted that he had submitted his request to a Captain Revel 1at the Jail.
This office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See 12-ORD-204. In the absence of proof that the Jail received the request prior to this appeal, this office cannot find that the lack of an earlier response was a violation of the Open Records Act. 12-ORD-223.
In light of the Jail's response to Mr. Wright's request, this appeal is moot as to items 1, 3, and 4. See 40 KAR 1:030, Section 6 ("If the 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.") This leaves only item 2, for which the Jail stated that no records exist. Mr. Wright has not disputed that representation. 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. Accordingly, we find no violation of the Open Records Act.
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.
Footnotes
Footnotes
1 Although the record is not conclusive as to the identity of the Jail's custodian of records, the Jail's response to the appeal, and to Mr. Wright's request, was issued by "Captain Mazzacone, Director of Administration."