Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in not producing requested records. We find that EKCC committed a procedural violation of the Open Records Act in not responding to part of a request for records. EKCC not substantively violate the Open Records Act in subsequently informing the requester that it did not have possession of the records, and directing the requester to the likely custodian.
Chris Hawkins ("Hawkins") submitted an open records request to Eastern Kentucky Correctional Complex on Feb. 19, 2014. Hawkins requested "# 1 copy of emails and/or correspondence that LLCC Psychologist Phillip Johnson sent and/or received to/from SAP/SSC Larissa Salyers concerning me # 2 copy of order/memo by EKCC dentist/dental staff relating to my getting Sensodyne toothpaste issued on 2/19/14." EKCC responded on Feb. 21, 2014 that Hawkins "was mailed 1 pg of notes."
Hawkins initiated this appeal on Feb. 25, 2014, claiming that he was denied the requested correspondence between Johnson and Salyers, and that "no reason for the denial or even a reference to the request was put on the disposition by EKCC's medical records." Hawkins added that "the '1 page note' that I was mailed was my request # 2 for the dental documentation." EKCC responded on Mar. 11, 2014, and acknowledged that "the response only addressed the dental notes and not the emails/ correspondence. A supplemental response was sent on Mar. 7 that addressed the emails/ correspondence. " EKCC attached its supplemental response, which stated that "the individuals you mention do not work at the Eastern KY Correctional Complex (EKCC) and the requested record(s) does not appear to be located at EKCC. If the records exist, they may be located at Luther Luckett Correctional Complex (LLCC) which is the work location for both individuals." EKCC argued that it "does not have custody of any of the requested records," and that "the supplemental response informed inmate Hawkins who he could write to request the records further in compliance with KRS 61.872(4).
KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
KRS 61.880(1) requires agencies to respond to requests for records in writing. In failing to respond to Hawkins' request for the correspondences, EKCC committed a procedural violation of the Open Records Act.
In its supplemental response, EKCC informed Hawkins that it did not have custody of the records, and directed him to the likely custodian in accordance with KRS 61.872(4). "A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. EKCC did not substantively violate the Open Records Act in informing Hawkins that it did not have possession of the records, and directing him to the likely custodian.
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:
Chris Hawkins # 103061Pam CantrellAmy V. Barker