Friday, August 19, 2016

Agencies do not violate state Open Records Act when documents don't exist

Consistent with 16-ORD-125 issued the day before, Attorney General Andy Beshear found for the Kentucky State Reformatory in an open records dispute.

On June 24, 2016, Beshear's office released an opinion in the matter of In re: James Hightower/Kentucky State Reformatory, 16-ORD-126.

Hightower requested a protective custody release form from September 2014 on April 27, 2016. Two days later, the state prison responded that it was not required to create a document that does not already exist.  "There are no other Protective custody forms in [Hightower’s] file for the year 2014 except for February 2014.” The letter also advised that if Hightower wished to see the February 2014 form, then he needed to submit a separate Open Records request. 

Hightower, in his appeal to the attorney general, included a Transfer Request form which stated there was a protective custody release in the scanned documents. Hightower assumed that a form was generated as well. 

The attorney general’s office held for the state reformatory, affirming its actions were procedurally correct. The opinion states that the right to view and receive the requested documents attaches only if they are “prepared, owned, used, in the possession of or retained by a public agency.” 

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