Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center violated the Open Records Act in the disposition of Charles Gilbert's June 28, 2002 request for a copy of "the $ 100.00 check (front and back) that was sent from [his] inmate account to the Knox County Circuit Court Clerk from North Point [sic] Training Center on 02-11-02" and a copy of "the receipt for a check in the amount of 10( I sent with my last request for copies." 1 For the reasons that follow, we find that NTC's disposition of Mr. Gilbert's request was procedurally deficient but substantively correct.
In a response directed to this office following commencement of Mr. Gilbert's appeal, Department of Corrections staff attorney Emily Dennis argued that the Department had "neither refused nor denied Inmate Gilbert's request," and that therefore "Gilbert's appeal is moot. " She explained:
Lt. Kathy Gifford is the Open Records Coordinator for NTC, as designated by the NTC Warden pursuant to Kentucky Corrections Policies and Procedures (CPP) 6.1(V). Lt. Gifford states she did not receive the above-referenced request from Gilbert until July 11, 2002, at which time NTC Inmate Accounts delivered a copy of the request and cancelled check to her. Upon receipt of the request, Lt. Gifford advises that the request was logged and a copy of the $ 100 cancelled check sent to Inmate Gilbert at the LLCC. With regard to a receipt for a 10-cent check written to NTC on 5/30/2002, Gifford advises that NTC Inmate Accounts has no record of [a] 10 cent check from Inmate Gilbert. As a technical matter, Lt. Gifford should have also advised Gilbert that NTC had no record of the 10-cent check. However, since Gifford responded in a timely manner to Gifford's request pursuant to KRS 197.025(7) , Gilbert has no cause to complain that the Department has denied or failed to respond to his request.
With regard to Gilbert's statement in his June 28, 2002 request that "This is my third request for the mentioned document," please find attached Gilbert's March 21, 2002 request. Kathy Gifford received this request on March 22, 2002. Also attached is Kathy Gifford's March 25, 2002 response to Gilbert. In her response, she states that a copy of the cancelled check was not available due to the fact that the check had not cleared the bank at the time of the request. Ms. Gifford is unaware of any other request filed by the inmate, and there is no other record of a "third" request contained in Gilbert's appeal.
Because NTC is unable to produce the record reflecting issuance of the ten-cent check, we cannot agree that Mr. Gilbert's appeal is moot. NTC's inability to produce a responsive record is tantamount to a denial of his request. Because NTC failed to so notify Mr. Gilbert in its July 11, 2002 response, we find that its response was procedurally deficient. Substantively, however, we find no error in NTC's actions insofar as it has released a copy of the cancelled $ 100 check to Mr. Gilbert and cannot release to him a record that it does not have.
The record does not support Mr. Gilbert's allegation that NTC failed to respond to his request. Although it was dated June 28, the request did not reach NTC until July 11, 2002. 2 Records custodian Jennifer Morrison immediately responded to the request by mailing Mr. Gilbert a copy of "CR # 41101 dated 2/11/02 to Knox Co. Circuit Clerk in the amount of $ 100.00 [that] cleared on June 3, 2002 . . . ." Thus, NTC properly responded to this portion of Mr. Gilbert's request. However, KRS 61.880(1) obligated NTC to issue an appropriate denial to the second part of Mr. Gilbert's request. The Attorney General has consistently recognized that an agency's inability to produce records due to the nonexistence is tantamount to a denial, and that it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD-59, p. 5; 01-ORD-220, p. 6. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-116. Although KRS 197.025(7) extends the agency response time for the Department of Corrections to five working days, KRS 61.880(1) requires all public agencies to "notify in writing the person making the request . . . of its decision." NTC effectively denied Mr. Gilbert's request for the record documenting issuance of the ten-cent check and, to the extent NTC failed to so notify him, its response was procedurally deficient.
Substantively, we find no error in NTC's "denial" of this portion of Mr. Gilbert's request. We refer the parties to a long line of decisions in which the Attorney General has recognized that a public agency cannot afford to request access to a document which does not exist or which it does not have in its possession or custody. See, for example, OAG 86-38; OAG 91-101; 93-ORD-51; 96-ORD-164. In general, it is not our duty to investigate in order to locate documents which the public agency states does not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. There are occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated. When the check 3 at issue has cleared, NTC will presumably be able to furnish Mr. Gilbert's copy of the cancelled check as proof it was negotiated. Mr Gilbert may, therefore, wish to resubmit this request at a later date.
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.
Charles Gilbert # 087773Luther Luckett Correctional ComplexP.O. Box 06LaGrange, KY 40031
Kathy GiffordOpen Records CoordinatorNorthpoint Training CenterP.O. Box 479Burgin, KY 40310
Steve DurhamDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 In his June 28 request, Mr. Gilbert indicated that he had submitted two earlier requests for a copy of the cancelled check and enclosed a copy of his inmate account monthly statement reflecting that a $ 100.00 check was issued to the Knox County Circuit Court Clerk on February 11, 2002.
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2 The copy of the request, with response, that was furnished to this office by the Department of Corrections is date-stamped July 11, 2002.
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3 Mr. Gilbert attached a copy of the " Inmate Money Transfer Authorization" in the amount of ten cents and dated May 24, 2002. This confirms that the monetary transaction occurred.
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