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 Eastern Kentucky Correctional Complex (EKCC) relative to the open records requests of McClellan Gaines for certain institutional records violated the Open Records Act. For the reasons that follow, we find that the EKCC did not violate the Open Records Act.
In his letter of appeal, Mr. Gaines asserted that the EKCC had failed to respond to his August 15, 2005 request, which stated in relevant part: "? Within (3) days of the above date for disposition I respectfully request a copy or inspection of CTO J. Ferguson's signature on a sign out log showing her or any other staff of EKCC signing any/all of my records out of your records dept. to handle and to have possession of my (Mr. Gaines') records." Mr. Gaines stated that this request had been submitted twice without disposition being made.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis, in relevant part explained:
Upon receipt of Mr. Gaines' appeal, I contacted EKCC records custodian Tami Williams to determine whether, in fact, Mr. Gaines had submitted requests and EKCC's responses. Ms. Williams was able to determine from a review of her open records log that Mr. Gaines had submitted requests to review records on 8/15/2005 and 8/16/2005 and that in both instances, his requests had been denied. Ms. Williams was, however, unable to locate copies of these responses. As explained to me by Ms. Williams, Mr. Gaines' requests were denied since there is no record maintained by EKCC responsive to his request. As recognized by your agency, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150. . . .
(Footnotes omitted.)
We conclude that the responses of the EKCC were consistent with prior decisions of this office and did not constitute a violation of the Open Records Act. The EKCC advised Mr. Gaines that no records responsive to his request were maintained by the agency and thus did not exist. The EKCC discharged its duty under the Open Records Act by affirmatively so advising. 04-ORD-43.
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.