Request By:
Anthony Mattingly, # 115494
SMU 127
Marion Adjustment Center
95 Raywick Road
St. Mary, KY 40063Lelia A. VanHoose, Director
Department of Corrections
Division of Probation & Parole
275 East Main Street
P.O. Box 2400
Frankfort, KY 40602-2400Emily Dennis
Staff Attorney
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, 2nd Floor
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Department of Corrections, Division of Probation and Parole violated the Kentucky Open Records Act in denying the request of Anthony Mattingly for copies of "policy and procedure, of all working for Probation and Parole obtaining copies of [Pre-]Sentence Investigation Reports, and any type of record keeping or tracking of receipt of this." Although the Division admittedly erred by initially advising Mr. Mattingly that no responsive records exist, the Division has since provided Mr. Mattingly with copies of any existing policies and procedures which are potentially responsive to his request at no charge; nothing more is required. Although Mr. Mattingly is apparently dissatisfied with the records provided, the Division obviously cannot produce for inspection or copying records which do not exist. Assuming that any additional records exist which are responsive to Mr. Mattingly's request, KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), authorizes the Division to deny Mr. Mattingly access because the records do not contain a specific reference to him as correctly argued by the Division on appeal.
By letter directed to this office on November 5, 2005, Mr. Mattingly initiated this appeal from the denial of his request. Upon receiving notification of Mr. Mattingly's appeal from this office, Emily Dennis, Staff Attorney, responded on behalf of the Division. As correctly observed by Ms. Dennis, the Division's response "was procedurally correct, in that, as a division of the [DOC], the [Division] is required under KRS 179.025(7) to respond to an open records request within five (5) business days." However, a substantively correct response "would have informed Mr. Mattingly that the [Division] is not obligated to perform research on his behalf." Citing OAG 89-45, Ms. Dennis correctly argues that the Open Records Act does not require public agencies "to carry out research or compile information to conform to a given request." In addition, the DOC is not required to comply with a request for any record from any inmate confined in any facility "unless the request is for a record that contains a specific reference to that individual" under KRS 197.025(2).
Upon further review of Mr. Mattingly's request, Ms. Dennis determined which policies codified at KAR 6:270, Corrections Policies & Procedures (CPP) Chapter 28 appear to apply, namely, CPP 28-01-01, CPP 28-01-02, CPP 28-01-03, CPP 28-01-08, CPP 28-01-09, 1 copies of which Ms. Dennis included with her response for Mr. Mattingly to review at no charge since the Division "incorrectly informed Mr. Mattingly" that none of the records maintained by the DOC are responsive to his request. In the future, however, "Mr. Mattingly will need to conduct research on CPPs at the inmate law library where he is currently incarcerated" instead of relying upon the DOC to conduct research or provide him with copies since the DOC is not statutorily obligated to do so 2 or provide him with copies of records that do not contain a specific reference to him pursuant to KRS 197.025(2).
While acknowledging receipt of the specified policies and procedures, Mr. Mattingly asserts that his request was for "Probation and Parole Policy and Procedure, not CPPs." Quoting the ostensibly relevant section of CPP 28-01-01, Mr. Mattingly requests assistance in learning the identity of the individual who received his "PSI file during June-November 2004" or, in the alternative, a copy of the "policy and procedure describing exactly how they ensure that CPP 28-01-01 is followed." Having confirmed that no records matching the description provided exist with the exception of those already disclosed, this office affirms the response of the Division as supplemented on appeal.
As long recognized by the Attorney General, a public agency cannot honor a request for records that it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. A public agency such as the Division obviously cannot produce for inspection that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2) ; 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed:
[A]n agency's inability to produce records due to their apparent 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; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by indicating that no responsive records exist as the Division initially did here, albeit mistakenly. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies access on this basis, it is "not 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-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate. In other words, this office is not "empowered to go beyond the written record to determine whether public employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records. In order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075; 03-ORD-059; 00-ORD-120; 98-ORD-47; 97-ORD-17; 94-ORD-140. When, as is the case here, the agency denies that any additional records were created, further inquiry is not warranted absent evidence to the contrary; the record on appeal supports rather than refutes the Division's position. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83; 99-ORD-108.
In providing Mr. Mattingly with copies of any records which are potentially responsive to his request, 3 the Division implicitly asserts that no additional records of this type exist. Assuming the Division made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record reflects, the Division is now in compliance with the Open Records Act. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. On appeal, Mr. Mattingly attempts to distinguish between the policies and procedures already provided and those to which he requested access. To the extent any responsive records exist, the Division has honored Mr. Mattingly's request; this office has recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See also 04-OMD-182 (questions regarding the authenticity of an agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records; the Attorney General refused to consider this issue). As in the cited decisions, this office finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal.
Even assuming that additional responsive records exist, the Division correctly argues that KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), authorizes the Division to deny Mr. Mattingly's request since the records do not contain a "specific reference" to him. In our view, 04-ORD-076, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. Accordingly, this office affirms the Division's ultimate disposition of Mr. Mattingly's request.
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.
Footnotes
Footnotes
1 As evidenced by the record, the referenced Policies and Procedures are entitled, "Probation and Parole Investigation Reports, Introduction, Definitions, Confidentiality, Timing and General Comments," "Probation and Parole Investigation Documents (Administrative Responsibilities)," "Presentence, Postsentence, Supplemental and Partial Investigations," "Probation and Parole Investigation Reports, Partial Investigation Reports and Submissions Schedule," and "Parole Planning Investigation Request, Halfway Houses, Parole Officer to Monitor Employment Search and Sponsorship," respectively; in short, the records appear to be responsive.
2 See 04-ORD-200.
3 Because the Division has acknowledged and remedied its initial error, the Attorney General will not belabor the issue.