NOT TO BE PUBLISHED

97-ORD-89

June 9, 1997

In re: Patsy Whitis/Northpoint Training Center

Open Records Decision

The question presented in this appeal is whether Northpoint Training Center violated provisions of the Open Records Act in responding to Patsy Whitis's April 17, 1997, request for a copy of the complete investigation of Ms. Whitis, Lieutenant Don Jackson, and inmates Marvin Hall and Newt Becknell, and any other records pertaining to the investigation not contained in the investigative file. Kathy Prall, records coordinator at Northpoint, responded to Ms. Whitis's request on April 21, advising her that although "steps have been taken to locate the document . . . it cannot be located." Lieutenant Prall indicated that she would send the document to Ms. Whitis as soon as it is located. This appeal followed.

Pursuant to KRS 61.880(2), the Attorney General is responsible for issuing a decision in an open records appeal stating whether the public agency from which public records are sought violated provisions of KRS 61.870 to 61.884. We find that in responding to Ms. Whitis's request, Northpoint Training Center complied in all material respects with the Open Records Act.

KRS 61.872 sets forth, generally, the public's right to inspect records of a public agency. When it is presented with an open records request, the agency must determine whether the requested records exist, and if so, whether they are subject to public inspection. This office has often recognized that a public agency cannot afford a requester access to records which do not exist. We have also recognized that in general it is not our duty to investigate in order to locate records which the requester maintains exist, but which the public agency maintains do not exist. See, for example, 93-ORD-51.

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. 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.

In a letter to this office dated May 14, a copy of which was sent to Ms. Whitis, Lieutenant Prall confirmed that "no written documentation exists pertaining to the request filed by Ms. Whitis, therefore none can be provided." She indicated that the following steps were taken to locate the requested records:

• The Warden's files for 1993 were searched, but no documentation could be found concerning an investigation involving Ms. Whitis and Lieutenant Don Jackson.

• The Internal Affairs office has no record of an investigation involving Ms. Whitis and Lieutenant Don Jackson.

• Edward Yount, Deputy Warden/Security of Bell County Forestry Camp, did not recall preparing a written report concerning an investigation of Ms. Whitis and Lieutenant Don Jackson.

• Warden Emmitt Sparkman provided a written statement that to the best of his knowledge, Edward Yount was not assigned to conduct an investigation concerning Ms. Whitis and Lieutenant Don Jackson.

Lieutenant Prall enclosed a copy of Warden Sparkman's statement denying knowledge of any investigation of Patsy Whitis. Simply stated, there are no records which satisfy Ms. Whitis's request. The questions presented in this appeal are factual, and not legal, in nature.

The Attorney General has no reason to doubt Northpoint Training Center's statement that the investigative records which Ms. Whitis requested to not exist. As noted, this statement was confirmed by Warden Sparkman in a May 13, 1997, memorandum to Lieutenant Prall. Northpoint's response was therefore entirely consistent with the provisions of the Open Records Act. The Center cannot make available for inspection records which do not exist.

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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#520

Distributed to:

Patsy Whitis

Northpoint Training Center

P. O. Box 479

Burgin KY 40310

Kathy Prall

Open Records Coordinator

Northpoint Training Center

P. O. Box 479

Burgin KY 40310

Tamela Biggs

Staff Attorney

Office of Counsel

Department of Corrections

State Office Building

Frankfort KY 40601