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 Kentucky State Reformatory violated the Open Records Act in the disposition of Alaric Moore's January 12, 2001, request for "two copies of LPN Marcia Payne's interview with Detective Mullikin of the Kentucky State Police . . . conducted [on] June 19th, 2000, at Kentucky State Reformatory." For the reasons that follow, we find that KSR's disposition of Mr. Moore's request may have been procedurally deficient, but was nevertheless substantively correct.
In his January 31, 2001, letter of appeal, Mr. Moore challenges KSR's failure to respond to his request. He states:
I was not able to certify my request form, because of lack of funds; however, I did have it notarized, also I do not have a copy of the agency's denial only because they have not responded to my request. I do have a copy of the request that I made, and the receipt showing that I sent the funds for the request; as of today it has been ten (10) working days that KSR has had my request.
In a response directed to this office following commencement of his appeal, Medical Records Officer Vanessa Chavez advises us that Mr. Moore's medical records were transported to Kentucky State Penitentiary on July 27, 2000, shortly after he was transferred there. She indicates that KSR has no record of having received Mr. Moore's January 12 request.
In a conversation with the undersigned conducted on February 15, 2001, Corrections Department Staff Attorney Tamela Biggs elaborated on KSR's position. Ms. Biggs stated that she was advised by KSR Internal Affairs Officer Harley Allen that an investigation was conducted, and an interview did take place, but that the interview records, which were generated by Kentucky State Police Officer Mullikin are not in KSR's custody. Indeed, he advised Ms. Biggs, Mr. Moore has previously received all records in KSR's custody that relate to the internal affairs investigation.
Clearly, KSR cannot furnish Mr. Moore with a copy of the interview notes of a Kentucky State Police officer that are not in its custody. A public agency cannot provide access to records that do not exist or are not in its custody. 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. KSR did not retain a copy of Detective Mullikin's interview notes, and therefore has no responsive record in its custody. We proceed no further in our substantive analysis of KSR's disposition of Mr. Moore's request.
We do note, however, that KSR may have committed a procedural violation of the Open Records Act. Mr. Moore asserts that he submitted his written request to the agency, and offers as proof a receipt showing the transfer of funds to KSR in the amount of $ 2.30. Nevertheless, Ms. Chavez denies that his request reached KSR. We are not equipped to resolve this factual dispute, but conclude that if Mr. Moore did, in fact, submit the request to KSR, and its failure to respond was due to negligence, then its inaction constituted a violation of KRS 197.025(7), which extends the standard three day deadline for agency response to five days. Conversely, if Mr. Moore's request did not reach KSR, then the facility cannot be faulted for its failure to respond.
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."