Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in responding to the open records request of inmate Carlos Thurman. In his request, dated October 7, 2019, and received October 7, 2019, Mr. Thurman requested a copy of his "transfer order and case notes from Lee Adjustment Center on or around Sept. 10th 2019 -- Sept. 19th 2019." For the reasons stated below, we find that NTC violated the Act procedurally but not substantively.
On October 7, 2019, NTC provided Mr. Thurman a copy of the transfer order, but denied his request for case notes with the following explanation: "Case notes are exempt pursuant to KRS 61.878(1)(i) & (j) as notes, preliminary, or containing opinion and recommendations that were not adopted in final agency action." In his appeal, which this office received on October 16, 2019, Mr. Thurman argued that case notes were not exempt and that he had received copies of case notes in response to prior requests.
In a response to the appeal dated October 24, 2019, Staff Attorney Julie C. Foster, Justice and Public Safety Cabinet, stated that "[o]n receipt of the appeal, NTC learned for the first time that no case notes exist responsive to the request and sent Inmate Thurman a letter so stating on October 22, 2019." She attached a copy of the letter advising Mr. Thurman that NTC had found no case notes for the date range in question.
A public agency has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable effort to identify and locate the requested records." 95-ORD-96 (internal quotation marks omitted). Although individual case notes may, in some circumstances, be exempt from disclosure under KRS 61.878(1)(i) or (j), case notes as an "entire class" of records are not automatically exempt. 16-ORD-154. Therefore, there was no general rule which excused NTC's initial failure to locate any responsive records and assess their exempt or nonexempt status.
Accordingly, NTC's "first obligation under the Open Records Act was to identify responsive records." 15-ORD-109. Because NTC did not ascertain that no responsive records existed, but "merely denied the request based on what a hypothetical [set of records] might contain, we conclude that the facility committed a procedural violation of the Act by its failure to conduct an appropriate search" for the requested case notes. 1 Id.
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. As we are unaware of any law, policy, or practice pursuant to which a facility must generate case notes in connection with a transfer order, we do not require an explanation for the nonexistence of the requested records. Therefore, we find no substantive violation of the 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 proceedings.
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