Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Marion Adjustment Center (MAC) violated the Open Records Act in responding to the following open records request of Anthony Mattingly, dated March 27, 2001:
Per KRS Ch 61 Open Records Act, I am requesting copies of chain of custody form, photos of any evidence, incident report, tape of adjustment committee proceeding, transcripts of final hearing 3/26/01 1420 hrs tape 594 side A beginning 001 end 197.
Plus full name of C/O Cooley. I will need for outside court action.
Please subtract any cost, from state pay that is owed me.
Also results from 0108903674 urine test dated 3/25/01.
In his letter of appeal to this office, dated April 6, 2001, Mr. Mattingly indicated that the Marion Adjustment Center had not responded to his request and had failed to meet the three-day deadline.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, J. T. Reynolds, Administrative Captain, MAC, on April 17, 2001, provided this office with a response to the issues raised in Mr. Mattingly's appeal. In his response, Captain Reynolds stated:
Information requested by inmate Anthony Mattingly # 115494 was prepared and mailed to inmate Mattingly at Northpoint Training Center by me on 4-02-2001. (Please see attached request from inmate Mattingly).
Copies of the chain of custody form, the disciplinary report, Part I & II, the hearing tape were sent and also provided was the full name of correctional officer Beth Cooley as requested. Please make note, the information was provided even though inmate Mattingly did not have sufficient funds to cover the expense of materials provided. As of this date, our Business Office is still awaiting sufficient funds to cover payment.
There were no photos of the evidence. The results of the urinalysis test taken of inmate Mattingly is pending as they are sent to LabCorp.
After receipt of a copy of Captain Reynolds' response to this office, Mr. Mattingly advised this office that he had not received everything he requested.
We are asked to determine whether MAC violated the Open Records Act. For the reasons that follow, we conclude that the actions of MAC were in substantial compliance with the Act.
We address first Mr. Mattingly's contention that MAC failed to respond within the three-day time limit as required by KRS 61.880(1). For purposes of calculating the response time for an agency of the Department of Corrections, KRS 197.025(7), as amended by the 1998 General Assembly, extended the standard three-day deadline for agency response to five days. This statute provides that the Department is to respond to an open records request within five days, excluding weekends and legal holidays. Thus, Captain Reynolds' April 2, 2001 response to the March 27, 2001 request would fall within the five-day response requirement of KRS 197.025(7).
Addressing next the response to Mr. Mattingly's request for photos and the results of the urinalysis, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. MAC's actions, in advising Mr. Mattingly that no photos were taken and the results of the urinalysis test had not yet returned from the lab, was proper and consistent with the requirements of the Open Records Act and prior decisions of this office.
Finally, Mr. Mattingly, in his reply to Captain Reynolds' response, contends that he did not receive all the records he asked for. Captain Reynolds, in his response, indicated that Mr. Mattingly had been provided records consistent with his request, with the exception of the photos (which did not exist) and the results of the urinalysis (which has not been returned from the lab) . Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Accordingly, the parties should continue to cooperate to resolve any differences or misunderstandings related to records sought.
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.
Anthony Mattingly # 115494Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Karen MardisOpen Records CoordinatorMarion Adjustment CenterHighway 84St. Mary, KY 40063
J. T. ReynoldsAdministrative CaptainP.O. Box 10Marion Adjustment CenterHighway 84St. Mary, KY 40063
Mike MoultonAttorney at Law58 Public SquareElizabethtown, KY 42701