Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the response of Northpoint Training Center to David Husband's open records request for records concerning the disposition and disposal of property confiscated from him when he was transferred from Marion Adjustment Center to Northpoint Training Center.
In his letter of appeal, Mr. Husband cites Northpoint Training Center policy 17-01-04 (D)(1)(a), which he quotes as follows:
If the property is identified, it shall be entered in a log book. Property items without a name shall be described, inventoried, reason given for destruction, and the date.
Mr. Husband argues that, pursuant to this policy, the Center should have documentation as to his property and when it was destroyed.
Apparently, no written response was made to Mr. Husband's request.
On February 2, 1999, this office notified the Northpoint Training Center that Mr. Husband had initiated an appeal. On February 5, 1999, Kathy Prall, Lieutenant, Open Records Coordinator, responded on behalf of the Center to the issues raised in the appeal. In her response, Lt. Prall explained:
Mr. Husband had a large portion of his property confiscated when it was inventoried before his transfer from Marion Adjustment Center to Northpoint Training Center. The confiscated property was not sent to Northpoint Training Center until approximately 30 days after he arrived at the institution. Theresa Coulter, the property room officer at Marion Adjustment Center, sent a letter with the property to explain the reason it was confiscated.
When the confiscated property arrived at Northpoint Training Center, Sergeant McCullough inventoried the property in the presence of Mr. Husband. The items he could prove ownership of were given to him. A portion of the property was placed on 45 day disposition and released to Mr. Husband's visitor.
After reviewing Mr. Husband's property file, it was determined that a portion of the property was unaccounted for. The staff in the Receiving and Discharge Department could not provide documentation as to the disposal of the property. I have discussed this with Mr. Husband.
It appears the Receiving and Discharge staff does not maintain a log of disposition of property. Mr. Husband was advised of this during our interview of February 5, 1999. Therefore, he cannot be provided documentation as to when the property was disposed of by the institution. If further information is required, please contact me.
It is the opinion of this office that the Center's response was procedurally flawed, but substantively correct.
We begin by noting that in responding to Mr. Husband's request, the Center failed to comply with KRS 61.880(1). That statute establishes guidelines for agency response to an open records request. It requires that upon receipt of a request, the agency:
shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, . . . whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision.
KRS 61.880(1) also states that a response denying, in whole or in part, access to records identified in the request must include citation to the specific exception authorizing the withholding of the record, and a brief explanation of how the exception applies to the record withheld.
The record before us indicates that the Center violated KRS 61.880(1) by failing to respond in writing to Mr. Husband's request.
Turning to the substantive issue in this appeal, this office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. Thus, we find that, if the requested records do not exist, the Center cannot be said to have violated the Open Records Act in denying Mr. Husband's request.
However, the Center's failure to document the disposal of confiscated property, as required by its policy of 17-01-04 (D)(1)(a), raises records management issues. We have therefore referred this matter to the Department for Libraries and Archives for review under Chapter 171 of the Kentucky Revised Statutes.
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
For this reason, we have referred this matter to the Department for Libraries and Archives for a determination of whether additional inquiries are warranted under Chapter 171, and in particular KRS 171.640 requiring adequate and proper documentation of essential transactions of an agency.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.