Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
Hawkins' December 15, 2017, request for a "6 month institutional account statement for court." 1 For the reasons stated below, we find no violation of the Act.
On December 21, 2017, KSP's records custodian responded: "Your request for a 6-month statement has been denied. All 6-month statements for court requirements are to be processed through your CTO [Classification and Treatment Officer] since you are in the RHU [Restricted Housing Unit]. Please see attached memo concerning the statement process and contact CTO Lauren Epley for assistance." The referenced memorandum, dated April 6, 2017, describes the process for obtaining the certification from the KSP business office for a certified six-month account statement requested by a court.
Mr. Hawkins' appeal was received in this office on January 4, 2018. He argues that KSP's certification process is contrary to the Open Records Act. On January 17, 2018, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to this appeal on behalf of KSP, providing a memorandum from KSP Open Records Coordinator Catherine Weicht which explains as follows:
If [Mr. Hawkins] wants a certified six month inmate account statement suitable for filing with a court, then he must provide the information required in the [April 6] memo to his CTO. He cannot request this type of certified statement as part of an open records request. The certification is a new record created by the Business Office when it is received through the Legal Officer or the CTO depending on an inmate's housing.
If Inmate Hawkins wants a six month inmate account statement without a certification for court, he may send a CPO to my office to pay for the copies of the statement and the uncertified statement will be provided.
(Emphasis added.)
While KSP has not refused to provide Mr. Hawkins an uncertified six-month account statement through the open records process, we agree that the certified statement he seeks does not yet exist, and will not exist unless it is created through the established procedures. 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. Furthermore, a public agency is not required to create a record in response to an open records request. 12-ORD-026. While Mr. Hawkins argues that he has previously requested assistance "in vain" from his CTO in obtaining a certified statement, we conclude that any alleged refusal to assist him in creating a record is not within the purview of the Open Records Act. Accordingly, we can find no violation of the Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Other items contained in the same request are not at issue in this appeal.