NOT PUBLISHED 

94-ORD-125

October 25, 1994

In Re: Stephen Knowles/Luther Luckett Correctional Complex

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Luther Luckett Correctional Complex relative to Stephen Knowles's request to inspect certain documents.

In a request dated September 19, 1994, Mr. Knowles asked to inspect, "[(1)] Any written, typed or computer generated requests from Luther Luckett staff requesting Meritorious Good Time Award for Steve Knowles sent to Kentucky Department of Corrections Records Department for August, 1992, to February, 1993, and for August, 1993, to September 1, 1994. (2) Any records from the Central Office in regards to any persons coming back on P.U. in the last quarter of 1993 that will not be recommended for Meritorious Good Time Award, coming from Cindy Hall, documented by Joe Macaka."

On behalf of the Luther Luckett Correctional Complex, Deputy Warden Tony Williams advised Mr. Knowles in writing on September 16, 1994, that the records he requested were nonexistent.

In his letter of appeal to this office Mr. Knowles refers to his request to inspect documents and sets forth his claim that the records department failed to respond to his request.

Under the Open Records Act (KRS 61.870 to KRS 61.884), the function of this office in regard to an appeal is to issue a written decision stating whether the public agency violated the Act. See KRS 61.880(2)(a).

KRS 61.872 sets forth, generally, the public's right to inspect records of a public agency. In any request to

inspect records there are always two basic questions: Are the requested records in the custody of the public agency and, if they are, are those records subject to public inspection?

As noted in 93-ORD-51, copy enclosed, at page four, we said that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.

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 61.871. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Apparently, no employee of the Luther Luckett Correctional Complex requested a meritorious good time award for Stephen Knowles. Nor was any record generated by Joe Macaka relative to meritorious good time awards for "persons coming back on P.U. in the last quarter of 1993 . . . ." The questions presented in this appeal are factual, and not legal, in nature.

The office has no reason to doubt the public agency's statement that the document requested is not in the requesting party's file. This statement was confirmed in an affidavit submitted by Mr. C. Tony Williams, Deputy Warden for Program Services at Luther Luckett on October 7, 1994. The response of the public agency to the requesting party was proper and consistent with the provisions and requirements of the Open Records Act as it cannot make available for inspection a document which it does not have in its possession or custody. The only additional duty of the public agency in such a situation is to advise the requesting party as to who does have the document in question if such information is known to the agency. See, KRS 61.872(4).

In connection with Mr. Knowles's request to inspect documents relative to Meritorious Good Time Awards, he does not present any issues which can be decided in an appeal under the

Open Records Act. There is no allegation that a particular document has been withheld from his inspection.

Mr. Knowles or the Luther Luckett Correctional Complex may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed in circuit court pursuant to KRS 61.880(3), but shall not be named as a party to these actions or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Distributed to:

Ms. Cindy Hall

Records Officer

Luther Luckett Complex

LaGrange, KY 40031

Mr. Steven Knowles, #102709

P. O. Box 6

Luther Luckett Correctional Complex

LaGrange, KY 40031