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 Western Kentucky Correctional Complex (WKCC) relative to the open records request of William Cornett, dated November 2, 2001, for a copy of a medical request in his medical file sent to Dr. Kimbler asking that Mr. Cornett receive treatment for Hepatitis C.
In his letter of appeal, dated November 12, 2001, Mr. Cornett stated that, as of that date, he had received no response to his request and, thus, his request had been denied.
After receipt of Notification and a copy of the letter of appeal, Brian A. Logan, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In his response, Mr. Logan advised:
After speaking with Ellen Cockerhan, the Open Records Coordinator at EKCC, she indicated to me that no copy of this request exists. She further indicated that Mr. Cornett was informed he was allowed to inspect his file to look for the request, but he declined to do so. An item which does not exist cannot be withheld. Further, the staff at WKCC offered to make an accommodation to Mr. Cornett to inspect the file. It was Mr. Cornett's decision not to do so.
Mr. Cornett's medical request was not withheld. It simply does not exist. He was informed that the WKCC medical staff did not have it. Thus, no specific exemption was relied upon in not providing Mr. Cornett a copy of the alleged medical request. All procedures under the Kentucky Open Records Act were followed as much as possible in this instance. Mr. Cornett is welcome to inspect his file to look for the request.
We are asked to determine whether the actions of the WKCC relative to Mr. Cornett's request violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a possible procedural error, the agency's action did not constitute a violation of the Act.
KRS 197.025(7) requires that the Department respond in writing, and within five business days, after receipt of an inmate's open records request. The record before us does not indicate whether the Department timely responded to Mr. Cornett's initial request. In his letter of appeal, dated November 12, 2001, Mr. Cornett stated that he had not received a response to his initial request, dated November 2, 2001. If the Department failed to respond within five business days after the receipt of Mr. Cornett's request, its response was procedurally deficient.
Addressing the substantive issue, Mr. Logan's response indicated that, after receipt of a copy of Mr. Cornett's open records request, which was enclosed with his letter of appeal, he contacted the WKCC Open Records Coordinator, and she indicated that Mr. Cornett was advised that the requested document did not exist in his file. She also stated that the WKCC medical staff offered to allow Mr. Shelton to inspect his file for the requested letter, but he declined the offer.
Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. We find that, under these facts of this case, there was no violation of the Open Records Act.
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.
William Cornett # 138946Western Kentucky Correctional Complex374 Bethel RoadFredonia, KY 42411
Ellen CockerhanOpen Records CoordinatorWestern Kentucky Correctional Complex374 Bethel RoadFredonia, KY 42411
Brian A. LoganStaff AttorneyDepartment of Corrections2439 Old Lawrenceburg RoadFrankfort, KY 40601