Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in not providing documents which did not exist. We find that LSCC did not violate the Open Records Act in not providing documents which did not exist.
Brandon R. Bruin ("Bruin") submitted an open records request to LSCC on Feb. 12, 2014. Bruin requested "a copy of the Memorandum addressed To Deputy Warden, David Green and a Copy of His reply. Memorandum is in Reference to; Current Events, Subject Conflict Resolution." LSCC denied the request on Feb. 18, 2014 on the grounds that "according to deputy warden Mr. Green, this document does not exist." Bruin initiated this appeal on Feb. 17, 2014, requesting "to inspect the warden's response and to receive a copy of the memorandum," and requested this office "to thoroughly investigate this Matter." LSCC responded to the appeal on Feb. 28, 2014 that "the Deputy Warden's office made a search for the memorandum and no memorandum was located. No response was made to the memorandum since the memorandum was not received. A public agency cannot afford a requester access to a record that it does not have or which does not exist."
"A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. "In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess."09-ORD-214. Accordingly, we find that LSCC did not violate the Open Records Act in failing to provide documents which did not exist.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Brandon R. Bruin # 240651Beth HarperAmy V. Barker