Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metropolitan Department of Corrections violated the Open Records Act in the disposition of Juan F. Escobedo's July 2, 2005, request for copies of jail surveillance videotapes. For the reasons that follow, we find that the Department's response was in compliance with the Act.
In his July 2 request, Mr. Escobedo stated the following:
[T]he particular item that I wish to inspect, would be copies of the "Video Tape" Recordings of what transpired in Dorm 3-B. The exact dates in which I seek to review transpired on September 9th and 10th, 2003. Moreover, the time in question, in reference to said "Video Tape," would have taken place around/from 6:30 thru 10:30 P.M. All of which took place on the 4th floor.
(Emphasis in original.) The Department's response to this appeal, submitted by Lora S. Morris, Policy Director, states that the Department received Mr. Escobedo's request on July 8, 2005, and proceeded to search for such a videotape, but without success. On the next business day, July 11, 2005, Ms. Morris responded in writing to Mr. Escobedo, as follows:
You [ sic ] Open Records Request to the Louisville Metropolitan Department of Corrections was forwarded to my office for investigation and response. Unfortunately, our archives department does not have the videotapes you requested, so I am unable to make anything available to you for your review.
Mr. Escobedo initiated an open records appeal on July 12, 2005, claiming that the Department had violated the following provisions of the Open Records Act:
KRS 61.872. Non-existance [sic] Records.
KRS 61.872. Three-day time period to reply.
KRS 61.884. Documents in which my name is mentioned.
KRS 61.880. Explanation for witholding [sic].
In its response to the appeal, the Cabinet states in part:
Pursuant to the law and to common sense, there are no grounds for appeal under the Open Records Act where there are no documents to review. The Department promptly investigated and responded in writing by truthfully informing Mr. Escobedo that the records he sought do not exist. The LMDC had no further obligation. See OAG 89-32.
We agree that there was no violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do 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. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. A search of the Department's archives was promptly conducted and no such videotape was found to exist. No legal requirement has been brought to our attention which would mandate that a local corrections department videotape all activity at all times within a jail. The question presented in this appeal is factual, and not legal, in nature.
Since the Department responded in writing to Mr. Escobedo's request within three (3) business days of its receipt, informing him of the nonexistence of the requested records, there has been neither a procedural nor a substantive violation of the Open Records Act. The Department's actions were therefore fully in compliance with the 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 proceedings.
Juan F. Escobedo, # 167447Eastern Kentucky Correctional Complex200 Road to Justice, Dorm 8-BU-09West Liberty, KY 41472
Lora S. MorrisPolicy DirectorLouisville Metropolitan Department of Corrections400 South Sixth StreetLouisville, KY 40202
Irvin G. MazeJefferson County Attorney2086 Hall of Justice600 West Jefferson StreetLouisville, KY 40202