Request By:
Billy Bailey, # 160044-SMU
Northpoint Training Center
P.O. Box 479
Burgin, KY 40310-0479Emily Dennis
Department of Corrections
2439 Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400Eric Buckley
Office of Contract Management
Department of Corrections
2439 Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether "Advanced Toxicology Network, a contract agent with the Department of Corrections," violated the Kentucky Open Records Act in not responding to the request of Billy Bailey to inspect or copy documentation relating to the urinalysis methods employed by ATN to test the urine of inmates at facilities under the jurisdiction of the DOC, including Mr. Bailey. Although the Attorney General is not equipped to resolve the factual issue of whether the DOC failed to respond, the DOC properly denied Mr. Bailey's request on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , since the requested records do not contain a specific reference to Mr. Bailey. In the alternative, the DOC obviously cannot produce for inspection or copying records which do not exist, and has now discharged its statutory duty by affirmatively indicating as much to Mr. Bailey in writing.
By letter dated February 10, 2005, Mr. Bailey initiated this appeal from the "refusal of the Open Records Coordinator of the [ATN], a contract agent with the [DOC] that handles all urinalysis testing for the [DOC], to allow [him] to inspect and[/]or copy records in his possession" which concern Mr. Bailey and the methods used to test his urine and that of the other inmates. Mr. Bailey's "stance" concerning the requested records is that ATN is a "contractor" for the DOC, is acting as an agent for the DOC, and any records generated by ATN are therefore public records, "regardless of where [ATN's] home office is located." Attached to Mr. Bailey's letter of appeal is a copy of his request for ten categories of records dated December 27, 2004.
Upon receiving notification of Mr. Bailey's appeal, Staff Attorney Emily Dennis responded on behalf of the DOC. As Ms. Dennis correctly observes, Mr. Bailey "fails to demonstrate a violation of the Kentucky Open Records Act. " According to Ms. Dennis:
First and foremost, Mr. Bailey incorrectly asserts that ATN is a contract agent of [the DOC]. Mr. Bailey's allegation is incorrect. Under authority of KRS 61.878(1)(l) and KRS 197.025(2), the [DOC] may properly deny an inmate access to agreements in its possession and information contained therein.
By its express terms, KRS 197.025(2) dictates that the DOC "is not required to provide records to inmates unless the record requested specifically references the inmate requester. " Because this provision is incorporated into the Open Records Act as an enactment of the General Assembly pursuant to KRS 61.878(1)(l), the DOC "does not disclose it's contractor's name and address in this response" to Mr. Bailey's appeal. In conclusion, Ms. Dennis explains:
ATN does not have a contract with the [DOC]. Therefore, there is no basis upon which to find any violation of the Kentucky Open Records Act by ATN based on Mr. Bailey's allegations. Mr. Bailey's stance -- that any records generated by a public agency contractor are open -- is incorrect. This office does not, however, represent ATN and ATN is not under contract with the [DOC]. I note there is no listed address for ATN on Mr. Bailey's alleged request. Since Mr. Bailey fails to demonstrate a controversy upon which the Attorney General can render an opinion and a factual issue exists as to whether the alleged request was ever made in the first place, the [DOC] does not address his remaining allegations in this response.
Because the DOC is correct on all counts, its denial is affirmed.
With respect to factual issues of the type presented, the Attorney General has long recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; 04-ORD-36; 03-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient information concerning the actual delivery and receipt of Mr. Bailey's request for this office to conclusively resolve the related factual issue.
Turning to the substantive issue presented, the Attorney General has consistently recognized that a public agency cannot provide access to records which it does not possess or which do not exist. 04-ORD-059, p. 4; citing 03-ORD-205, p. 3; 02-ORD-145; 01-ORD-36; 99-ORD-98; 97-ORD-17; 93-ORD-134. Rather, the right to inspect attaches only if the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 2, citing 97-ORD-18. In addressing the obligations of an agency denying access to public records on this basis, the Attorney General has repeatedly observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 01-ORD-38; 00-ORD-83; 97-ORD-16; 96-ORD-164; OAG 91-101; OAG 86-38. A necessary corollary of this holding is that an agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as the DOC ultimately did here. It is beyond dispute that the DOC cannot produce for inspection or copying that which it does not have. 04-ORD-059, p. 4. "Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-059.
In sum, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(2), 1 and this office is without authority to deviate from that statute. Although there may be occasions when the Attorney General requests that a public agency substantiate a denial based on the nonexistence of the requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented. To the contrary, the DOC has provided an entirely credible explanation as to why no responsive records exist -- the DOC does not have a contractual relationship with ATN. Noticeably absent from the record is any evidence to refute this assertion. In declining to provide Mr. Bailey with the name and address of the contractor performing this service for the DOC, the DOC properly relies upon KRS 197.025(2), which provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in jail or any facility or any individual on active supervision of the department, unless the request is for a record which contains a specific reference to that individual. (Emphasis added).
On this issue, 04-ORD-071, a copy of which is attached hereto and incorporated by reference, is controlling. Because the requested records do not contain a specific reference to Mr. Bailey as required by KRS 197.025(2), an inmate at Northpoint Training Center, the DOC is not obligated to provide Mr. Bailey with access or copies, even assuming such records exist. Accordingly, the DOC did not violate the Open Records Act in denying Mr. Bailey's request on this basis.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 In relevant part,KRS 61.880(2)(a) provides:
The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays, and legal holidays, a written decision stating whether the agency violated the provisions of KRS 61.870 to 61.884.