Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Department of Corrections relative to the open records request of Aaron Rivers violated the Open Records Act. For the reasons that follow, we find that the Department's substantive response affirmatively advising him that the requested record did not exist was proper and did not constitute a violation of the Act.
By letter dated March 7, 2004, Mr. Rivers submitted an open records request for copies of records to Don Bottom, Program Administrator, Department of Corrections, making the following request:
I received new Kentucky time out of Pulaski County.
My records have not been updated and my residence record card does not reflect the new conviction.
I believe this violates policy and I'd like to inspect the policy relating to the classification of inmates who receive new time.
In his letter of appeal to this office, dated March 22, 2004, Mr. Rivers states that as of that date he has yet to receive a response to his request.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Emily Dennis, staff attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. A copy of the response was also provided Mr. Rivers. In her response, Ms. Dennis advised, in relevant part:
Don Bottom contacted me upon receipt of Mr. Rivers' appeal. Mr. Bottom told me that he had in fact received this letter from Mr. Rivers, however, he forwarded the letter to Offender Information Services, since the request specifically referenced a new conviction and Mr. Rivers' classification.
I contacted Offender Information Services to inquire on the status of Mr. Rivers' request. I learned the request was initially received by Mr. Bottom on March 17, 2004, and no response has been issued to date. I explained to Mr. Bottom that failure to respond to an open records request is a violation of the procedural requirement of KRS 197.025(7), which provides, " . . . upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released."
With respect to the specific record requested by Mr. Rivers, specifically a copy of Kentucky Dept. of Corrections policy relating to the classification of inmates who receive new time, no such policy exists. The Office of the Attorney General 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. Also, as recognized by your office, an agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. I have also discussed this affirmative duty with Mr. Bottom.
We are asked to determine whether the actions of the Department violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural violation, the actions of the Department did not constitute a violation of the Act.
We address first the agency's response advising Mr. Rivers that no Department policy, such as he is seeking, exists. 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. Accordingly, the Department's actions, in advising Mr. Rivers that the record he was seeking did not exist, was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
With respect to the procedural requirements of the Open Records Act and KRS 197.025(7), as they pertain to correctional facilities, the Department acknowledged that a violation of the cited provision occurred in the request made by Mr. Rivers and we will not belabor this issue. To ensure that future responses to open records requests conform to the Open Records Act, the Department advised that the procedural requirements under the Act and KRS 197.025(7) has been fully explained to staff involved in the request.
Notwithstanding the foregoing, Ms. Dennis, in her response to this office, further advised that Mr. Rivers' resident record card would be updated to reflect his new conviction and a copy of the updated card would be provided to him free of charge.
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.