Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Herman C. Tapp in connection with his attempts to obtain a copy of a specific document.
In a request letter, dated November 5, 1993, Herman C. Tapp in part asked for a specific document:
My request for a copy of and inspection of the written complaint which spawned the investigation of child abuse involving me and my children. It is dated on or about October 22, 1992.
In his letter of appeal to this office, dated December 1, 1993, Mr. Tapp stated in part that, "No response whatsoever has been received by the appealant (sic) pursuant to his November 5, 1993 open records request. KRS 61.880(5)." The letter contains several other charges and allegations which cannot be addressed in a decision by this office under the Open Records Act. KRS 61.870 to KRS 61.884, specifically KRS 61.880(2) and (4).
Mr. Tapp's letter of November 5, 1993, was addressed to the Northpoint Training Center, the Kentucky State Police (Richmond Post), and to the Warden and Deputy Warden of the Eastern Kentucky Correctional Complex.
On January 12, 1994, the undersigned Assistant Attorney General called the Northpoint Training Center and was directed to Joan Huffman, Records Supervisor. Ms. Huffman said in part that she did not recall receiving the request letter in question from Herman C. Tapp. She further stated that even if such a letter had been received it would have been forwarded to the institution where Mr. Tapp was confined at that time since he was not an inmate at the Northpoint Training Center in November or December of 1993.
Obviously Ms. Huffman cannot respond to a written request for a document if she or Northpoint did not receive that request. However, if she did receive such a written request she, as the custodian of records, is legally required to respond to that request (KRS 61.880(1)) even if the response is merely to advise that she does not have the requested record and that the inmate and his records have been transferred to another institution.
On January 12, 1994, the undersigned telephoned the Kentucky State Police Post at Richmond and was subsequently called by Detective Rogers. Mr. Rogers stated that if he had received Herman Tapp's request letter it would have been directed to his supervisor.
The undersigned on January 12, 1994, next talked by telephone with Lt. Mays and Sgt. Gill of the Kentucky State Police Post at Richmond. Neither of these officers recalled receiving or seeing the request letter of November 5, 1993, from Herman Tapp. Sgt. Gill indicated that the State Police's role in the Herman Tapp investigation had been concluded and requests for documents relative to the matter could be made to the State Police Records' Custodian in Frankfort whose name and address are:
Ms. Diane Smith
Department of State Police
919 Versailles Road
Frankfort, Kentucky 40601
The undersigned on January 12, 1994, also called the Eastern Kentucky Correctional Complex and was directed to Art Wooden, Litigation Coordinator. Mr. Wooden later said that after examining the correspondence and files of Warden O'Dea and Deputy Warden Beckstrom he could find no record that either the warden or the deputy warden had received Herman Tapp's letter of November 5, 1993. If neither the warden nor the deputy warden received the letter of November 5, 1993, then, obviously, neither they nor the institution could respond to that letter. We have no reason to doubt the statements of any of the public officers and employees relative to their nonreceipt of the letter in question.
Since none of the public officers or employees actually received the letter in question their failure to respond does not constitute a violation of the Open Records Act. One cannot respond to a letter or request which has not been received. If the letter was received a written reply is required even if the reply only advised that the public agency does not have the document requested.
Any of the parties to this appeal may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against any of the parties pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.