Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although DOC failed to locate certain records to which Donald Bartley arguably sought access in initially responding to his request for copies of "any document(s) which refers and/or authorizes my sentence (s) as 'possibility' . . . [t]o include any document(s) this agency referred to the Kentucky Parole Board that has recorded my sentence as a 'possibility,'" DOC subsequently located and provided Mr. Bartley with those records thereby resolving the only legitimate open records issue presented in this appeal. 1 Because an open records appeal initiated pursuant to KRS 61.880(2) is not the appropriate mechanism for contesting DOC's alleged refusal to "ensure that sentences conform to the mandatory language of [KRS 532.030] . . . [by changing the term] benefit to possibility [and] for or until twenty-five years to after twenty-five years," we do not address this issue.
On May 10, 2011, DOC notified Mr. Bartley that "[t]here is no documentation that uses the word 'possibility'" but offered to provide him with a four page judgment and a five page 17.4 appeal upon properly tendered payment for copies and postage. 2 In supplemental correspondence directed to this office after he initiated his appeal, DOC indicated that additional documentation had been located "that refer to 'possibility' in relation to his sentences, " and provided Mr. Bartley with copies of the documents. No other responsive records were located, DOC concluded, and no other records could be produced. Consistent with that line of open records decisions recognizing that an agency cannot afford a requester access to records that it does not have or that do not exist, and that the agency discharges its duty by affirmatively so stating, DOC urged the Attorney General to affirm the disposition of Mr. Bartley's open records request and decline jurisdiction in the unrelated matter. Having reviewed the record on appeal, we do so.
Pursuant to 40 KAR 1:030 Section 6, 3 DOC resolved the properly presented access issue by providing Mr. Bartley with all records in its custody that were responsive to his request and advising him that no additional records exist. This issue warrants no further discussion. See 99-ORD-98 and authorities cited therein.
Pursuant to KRS 61.880(2), "[if] a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection." KRS 61.880(2) directs the Attorney General to "review the request and denial and issue within twenty days, excepting Saturdays, Sundays, and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. " (Emphasis added.) The Attorney General does not have authority under KRS 61.880(2) to find DOC in violation of provisions of KRS 61.870 to 61.884 because it employs the term "possibility" in Mr. Bartley's resident record card or elsewhere. Simply put, Mr. Bartley states no open records claim for which relief can be granted under KRS 61.880(2). See 96-ORD-120 and authorities cited therein. This issue also warrants no further discussion.
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.
Distributed to:
Donald Bartley, # 099394Amy V. Barker
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