Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of Public Advocacy ("DPA") violated the Open Records Act in responding to the open records request of inmate Wayne C. Murphy. On September 24, 2012, Mr. Murphy wrote to the Morehead DPA office and requested a copy of a video surveillance tape and "Grand Jury Testimony/transcript" from his "criminal case No. 04-CR-00149 in Greenup, Ky., that was once appointeed [ sic ] to attorney Samuel Weaver." Having received no response by October 9, 2012, he appealed to this office.
Since the record does not reflect when Mr. Murphy's request was received by DPA, we must presume that the agency's response was untimely. KRS 197.025(7) requires a written response to be issued within five (5) business days of receipt, excluding weekends and legal holidays. DPA's failure to do so was a procedural violation of KRS 197.025(7).
On October 16, 2012, attorney Jay Barrett with the Morehead DPA office wrote to Mr. Murphy:
I have received your letter asking for copies of your grand jury tape or transcript and a Wal Mart video. We have searched diligently but cannot find any part of your file in this office. I realize that our Boyd county office has informed you that Sam Weaver's file on this matter could be here in Morehead, but it isn't. It appears from cour[t]net that Robin Webb was the attorney that tried your case, she may still be in possession of your file.
I also contacted our Appeals Branch to see if they have your file, as sometime appeals' attorneys obtain the file from trial attorneys. They advised me that they had to send your case to a conflict attorney, Michael Goodwin. So whatever file appeals has on this case is now in his possession but I don't know if it includes the items you want. I am sending Mr. Goodwin and Ms. Webb copies of this letter so they will be aware of your request for these items (though neither of them is subject to the Open Records Act) .
I am sorry that we weren't able to assist you in locating this evidence, and hope that one of your other counsel can help.
The following day, October 17, 2012, Mr. Barrett received notice of Mr. Murphy's appeal and added the following explanation for the file's absence:
It is DPA's policy that the file of a conflict case which has been conflicted outside the agency does not come back to the agency upon the conclusion of the case, but remains with the conflict attorney to whom it was conflicted. We believe this is necessary in order to maintain compliance with ethical rules.
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 this case, Mr. Barrett's response reflects a diligent effort by the agency to attempt to locate the requested records. We therefore find that DPA did not substantively violate the Open Records Act in its response to Mr. Murphy's request.
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:
Wayne C. Murphy # 207062Jay Barrett, Esq.Ed Monahan, Esq.