Request By:
Gene Collins, # 139592
L.L.C.C.
P.O. Box 6
LaGrange, KY 40031Cindy Hall
Open Records Coordinator
Luther Luckett Correctional Complex
P.O. Box 6
LaGrange, KY 40031Tamela Biggs
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
Frankfort, KY 40602-2400
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Open Records Act in its disposition of Gene Collins' January 30, 2001, request for copies of "the internal chain of custody forms from LabCorp, meaning the control and continuity forms from both labs" relating to the charges of unauthorized use of drugs or intoxicants leveled against him. For the reasons that follow, we affirm LLCC's disposition of his request.
In a response dated January 30, 2001, Cindy Hall, records custodian at LLCC, furnished Mr. Collins with the only available chain of custody document in the facility's possession, namely, the chain of custody form required by Corrections Policies and Procedures. Following commencement of his appeal, Corrections Department Staff Attorney Tamela Biggs elaborated on LLCC's limited response. She explained:
Upon receipt of the original request from the appellant, [Ms. Hall] contacted Internal Affairs to ascertain what documentation they had. The Internal Affairs Officer provided Ms. Hall with the only chain of custody form in LLCC's possession. . . . The forms the appellant has requested are not in the Department's custody. The Department does not receive a copy of the testing laboratory's internal chain of custody forms. Those documents are the property of the laboratory and the appellant would have to obtain the forms from the lab. LLCC cannot provide what it does not have. . . . LLCC does not obtain these forms when it requests a drug screen.
On this basis, Ms. Biggs asserted that LLCC "responded appropriately to the appellant's request." We agree.
Clearly, LLCC cannot furnish Mr. Collins with copies of chain of custody documentation that is not in its custody. A public agency cannot provide access to records that do not exist or are not in its possession. OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-116. Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
Although there are occasions when, under the mandate of KRS 61.8715, 1 this office requests that a public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiry. Pursuant to Kentucky Corrections Policy 15.8, VI(3), a copy of which is attached hereto, only one document is generated and maintained by a correctional facility. CP 15.8, VI(3)(G) states that the inmate shall receive a copy of this form if a disciplinary report is filed against him. In Mr. Collins' case, a copy of the form was, by his own admission, released to him. CP 15.8, VI(3) requires nothing more. Whatever his legal entitlement to the chain of custody forms generated by outside laboratories might be under Byerly v. Ashley, Ky. App., 825 S.W.2d 286 (1992), he is not entitled to obtain records that are not in LLCC's custody, nor can he compel the institution to retrieve these records for him. Ms. Hall fully discharged LLCC's obligations under the Open Records Act by releasing a copy of the institution's completed chain of custody form to Mr. Collins.
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 proceedings.
Footnotes
Footnotes
1 KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records."