Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Correctional Institution for Women ("KCIW") violated the Open Records Act in its disposition of inmate Barbara Schambon's October 13, 2016, request for copies of five rejected grievances filed by her. For the reasons that follow, we are unable to find a violation of the Act but must refer this matter to the Department for Libraries and Archives.
In her October 13 request, Ms. Schambon asked for copies of her five grievances, identifying each by number. On October 20, 2016, Katherine Ray of KCIW Offender Information provided four of the rejected grievances, but stated: "The Grievance Coordinator has requested a week extension to research and locate the 5th grievance, " numbered 16-587. On October 27, 2016, Ms. Ray issued a final response stating: "Grievance Coordinator, UA Oerther has advised me that all efforts to locate the fifth grievance that you had requested have been exhausted and that a copy of the rejected grievance cannot be located at this time." Ms. Schambon's appeal was received in this office on November 4, 2016.
On November 15, 2016, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of KCIW. She provides an affidavit from Unit Administrator Mary Oerther indicating that a diligent search was conducted but the grievance could not be located:
I have made a search for rejected grievance 16-587 filed by Barbara Schambon # 004230 on July 11, 2016 and rejected on July 25, 2016. My search began by requesting the Grievance Aides find the grievance. They were unable to locate grievance 16-587, so they went through the entire filing cabinet. They were again unable to find it. At that time, CTO Catherine Partlow and I began searching for the grievance. Our search included looking through the entire filing cabinet where all grievances are filed as well as the rest of the Grievance Aide office area. After this thorough search through the grievance records, the grievance could not be located.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. We therefore do not find a substantive violation of the Open Records Act. 1 In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the grievance has apparently been lost or misplaced by KCIW, which would indicate a records management issue.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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