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 Louisville Metro Public Defender (LMPD) relative to the open records request of Larry Tyus violated the Open Records Act. For the reasons that follow, we find that the agency's response affirmatively advising him that it did not have the requested record was proper and did not constitute a violation of the Act.
By letter dated May 17, 2004, addressed to the Jefferson Public Defender Office, Mr. Tyus made the following request:
I am making a request for and letter from the Metro Correction Department from RN Mary Lou Dewberry, dated May 07, 2002, concerning my medical care. I have no problem with a cost of getting a copy of this letter. So please advise of any copying cost.
I would like to thank you for any time that it may cost you and your staff to procure this document. I believe the indictment or case number is 02cr1339.
In his letter of appeal to this office, dated May 23, 2004, Mr. Tyus stated that as of the date of his letter, he had not received a response to his request.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Leo G. Smith, Deputy Chief Public Defender, LMPD, provided this office with a response to the issues raised in Mr. Tyus' appeal. In his response, Mr. Smith advised:
I cannot find any record that our office ever received a request from Larry Tyus. However, since I received the notice from you, I have reviewed our office file. We do not have a letter as described by Mr. Tyus in our office file. Additionally, please be advised that Mr. Earl Grimes left our office long ago to go into private practice.
Attached is a copy of the letter that I sent to Mr. Tyus after receiving his request through your office. Please let me know if you need any additional information.
In a letter to Mr. Tyus, dated June 1, 2004, Mr. Smith advised:
I have received a letter from the Attorney General's office indicating that you desire a copy of a letter allegedly written "around May 7, 2002" by "Mary Lou Dewberry a medical personnel of Correctional Medical Services and works at the Metro Louisville Corrections facility," to "public defender Eric Grimes."
First, please be advised that Eric Grimes left our office to go into private practice. Second I have reviewed our office file. Our office file does not contain any such letter and therefore I cannot furnish you a copy of this alleged letter.
You may want to try contacting the Jefferson County Metro Corrections at the following address:
George Detella
Director of Corrections
Jefferson County Metro Corrections
400 Sixth Street
Louisville, KY 40202
We are asked to determine whether the actions of the LMPD violated the Open Records Act. For the reasons that follow, we conclude that the actions of LMPD did not constitute a violation of the Act.
We address first the LMPD's response advising Mr. Tyus that its office file did not have a copy of the requested letter. 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. Accordingly, the LMPD's actions, in advising Mr. Tyus it did not have the record he was seeking was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
Next, we address, Tyus' contention that the LMPD's failure to respond to his request constituted a violation of the Open Records Act. The LMPD advised this office that, upon examination of its records, it could not find any record of the agency ever receiving the request from Mr. Tyus.. We have insufficient information to address this issue and, thus, make no finding in this regard. Obviously, an agency cannot respond to a request it does not receive.
Finally, we note that the LMPD's action of providing Mr. Tyus with the name and address of the agency that might have the record he was seeking was proper and in accord with KRS 61.872(4). 1
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.
Larry Tyus3719 Parker AvenueLouisville, KY 40212
Leo G. SmithDeputy Chief Public Defender Louisville Metro Public Defender 200 Advocacy Place719 West Jefferson StreetLouisville, KY 40202-2732
Daniel GoyetteLouisville Metro Public Defender 200 Advocacy Place719 West Jefferson StreetLouisville, KY 40202-2732
Footnotes
Footnotes
1 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.