Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question raised in this appeal is whether the actions of the Lexington-Fayette Urban County Government (LFUCG), Division of Community Corrections, in response to Keith Guy, Sr.'s request for a copy of the portion of the attorney visitation roster records that related to him from January 2002 to April 2002 violated the Open Records Act. For the reasons that follow, we conclude that the actions of the Division were procedurally and substantively in compliance with the Open Records Act.
After receipt of Notification of the appeal and a copy of Mr. Guy's form letter of appeal in which he alleged a violation of the three days to answer requirement (KRS 61.880(1); the application to inspect (KRS 61.872); and Right to Inspect, but, make Deletions (KRS 61.874). Glenda Humphrey George, Corporate Counsel, LFUCG, provided this office with a response to the issues raised in the appeal. In her response, Ms. George advised, in relevant part:
On or about September 5, 2002, Mr. Randy Pridemore, Assistant Director, Division of Community Corrections received an open records request from Mr. Guy dated September 2, 2002. In his letter, Mr. Guy indicated that he wanted to inspect a copy of the portion of the attorney visitation roster that related to him. Mr. Guy indicated that he wanted the records from January 2002 to April 2002.
On Tuesday, September 10, 2002, Mr. Pridemore contacted Mr. Guy to determine whether Mr. Guy was represented by a private attorney or Legal Aid. Mr. Guy informed Mr. Pridemore that he was represented by Legal Aid. Mr. Pridemore advised Mr. Guy that attorneys for Legal Aid are not required to sign in at the front desk and that there were no documents listing the dates his legal aid attorney visited him. On the same day, Mr. Pridemore sent Mr. Guy a letter confirming their telephone conversation and providing Mr. Guy with the contact information for the Legal Aid office. Additionally, enclosed with Mr. Pridemore's letter was Mr. Guy's payment for the copies.
?
With respect to KRS 61.880(1) , this section states that a public agency must: "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after receipt of any such request whether to comply with the request and shall notify in writing the person making the request within the three (3) period, of its decision." However, this section does not apply to the Division of Community Corrections. KRS 197.025(7), which applies to the Division of Community Corrections, allows correctional institutions five days to respond to open records request rather than three days as outlined in KRS 61.880(1).
KRS 197.025(7) states as follows: KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request . . . whether the record shall be released." In 00-ORD-170, the Attorney General opined that KRS 197.025(7) which is a specific statute governing the open records response time for correctional facilities supercedes KRS 61.880(1) which is a general statute governing the open records response time for public agencies. The Division of Community Corrections responded to Mr. Guy on September 10, 2002. This response was mailed to Mr. Guy within the five-day time frame provided in KRS 197.025(7). Mr. Guy was advised that the documents he requested did not exist and pursuant to KRS 61.872(4), he was provided with the name, address, and phone number of the Legal Aid office as that office might have documents responsive to his request. A copy of the letter from the Division of Community Corrections is attached as Exhibit 1.
As to KRS 61.872(2) and KRS 61.874(1), the Government has not violated either of these sections. KRS 61.872(2) states that all persons have the right to inspect public records and addresses requirements for submitting open records requests which may be imposed by records custodians. As to KRS 61.874(1), this section relates to requesters being allowed to make copies of nonexempt public records and additional requirements which may be imposed by records custodians. It appears that Mr. Guy checked these two sections on his open records appeal form simply because they were listed and did not review them to determine whether they actually applied to the Government or whether they had been violated.
We are asked to determine whether the response of the Division was proper and timely. For the reasons that follow, we conclude that the response was timely and in full compliance with the requirements of the Act and prior decisions of this office.
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. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Division advised Mr. Guy that it had no documents listing the dates his legal aid attorney visited him, as legal aid attorneys are not required to sign in at the front desk when they visit their client. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in the Division's response to this portion of Mr. Guy's request.
Moreover, KRS 61.872 (4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Mr. Guy was notified that he would have to check with his legal aid attorney for that information and provided him with the contact information of the legal aid office. Accordingly, we conclude that Division's action in this regard was in compliance with KRS 61.872(4) and the Open Records Act.
Addressing the issue of timeliness, the Division's response to the letter of appeal indicated that it received Mr. Guy's request no earlier than September 5, 2002 and responded to him on September 10, 2002. This was within the five (5) day response time require by KRS 197.025(7) , the specific statute governing a correctional facility's response time to an open records request. 00-ORD-170.
Finally, Mr. Guy checked the sections for Application to Inspect (KRS 61.872); and Right to Inspect, but, make Deletions (KRS 61.874) on his appeal form. As noted above, the Division did not have the record he asked for and affirmatively advised him of that fact. Thus, the question of inspecting such a record or having information from it deleted is not relevant to this appeal.
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.
Keith Guy, Sr. # 158185Northpoint Training CenterP.O. Box 479, D-4Burgin, KY 40310
Glen Brown, JailerFayette County Regional Detention Center600 Old Frankfort PikeLexington, KY 40510
Glenda Humphrey GeorgeDepartment of LawLFUCG150 East Main StreetLexington, KY 40507