Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in failing to provide Jessie Jones with a copy of the "court call hearing tape #3162 side B begin at 136, End at 225 [sic]." Because the requested audiotape cannot be located, nor is the Department of Corrections/EKCC legally required to maintain the record for longer than thirty (30) days following the decision of the Warden on appeal, EKCC ultimately complied with the Open Records Act by affirmatively indicating as much to Mr. Jones in writing. As long recognized by this office, a public agency cannot produce for inspection or copying a record which does not exist or a record which the agency does not possess.
On June 12, 2006, Mr. Jones submitted his original request for the specified audiotape; Records Custodian Kathy Litteral notified Mr. Jones in writing that he could "pick the tape up" in her office at 1:00 p.m. on Friday, June 23, 2006. Although Mr. Jones appeared in Ms. Litteral's office at the designated time, Ms. Litteral then advised Mr. Jones that "the tape could not be located by the Adjustment Hearing [O]fficer and therefore was unable to be copied"; Ms. Litteral documented same in a memorandum dated July 21, 2006. On July 24, 2006, Mr. Jones submitted an identical request, in response to which Ms. Litteral noted that he "already requested this tape and was verbally notified that the tape could not be located on 6/20/06 and notified in writing on 7/21/06. A second request does not change the facts." Attached to Ms. Litteral's response is a copy of Mr. Jones' initial request and her memorandum. By letter dated August 8, 2006, Mr. Jones appealed from this disposition of his request.
Upon receiving notification of Mr. Jones' appeal from this office, Emily Dennis, DOC Staff Attorney, responded on behalf of EKCC. Citing KRS 197.025(3), pursuant to which any person confined in a penal facility shall challenge any denial of an open records request with the Attorney General "by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial," Ms. Dennis first correctly argues that Mr. Jones' appeal is time-barred as to his request dated June 20, 2006. Accordingly, our analysis focuses exclusively upon the actions of EKCC relative to Mr. Jones' subsequent request.
Elaborating upon the position of EKCC, Ms. Dennis explains:
The record requested by Mr. Jones is a copy of the audio tape recording from a prison disciplinary hearing involving Mr. Jones, for which written records exist to document the disciplinary write-up and findings of an institutional adjustment officer who conducted Mr. Jones's adjustment proceeding. [Footnote omitted] Pursuant to 501 KAR 6:020, Corrections Policy & Procedure (CPP) 15.6, II.B.2., ". . . [a] correctional institution shall preserve the audio tape recording of the hearing for a period of two (2) years from the date of the Warden's review. If, through any mechanical malfunction, [or] the recording is lost, nothing shall effect the ultimate decision of the committee or officer, pending the Warden's review." [Footnote omitted] With respect to inmate access to a copy of the audio tape recording of an adjustment proceeding, CPP 15.6 provides as follows:
Emphasis added. See CPP 15.6, II.G. Access to Prison Disciplinary Tapes. [Footnote omitted]
A copy of 501 KAR 6:020, CPP 15.6 is attached to Ms. Dennis' response.
As correctly observed by Ms. Dennis, a "public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98." In this case, Ms. Litteral "conducted a diligent search for tape #3162, which she was unable to locate. " Unfortunately, Ms. Litteral searched for the tape after she had already responded to Mr. Jones "informing him of the date and time at which he could come to her office to pick up the tape, which she later discovered to be missing." That being the case, Mr. Litteral verbally advised Mr. Jones that "the tape was lost" when he arrived on June 23, 2006, and later sent a "memorandum documenting this fact," a copy of which EKCC placed in his institutional record. "While proper procedure would have been to search for the record prior to making the response to Mr. Jones which informed him of the date when the record would be available," Ms. Dennis concedes that did not happen in this case "due to time constraints in responding to the request." 1
In conclusion, Ms. Dennis correctly notes that audiotape recordings of prison disciplinary proceedings "are not scheduled as records under the [DOC] Records Retention Schedule." Such recordings are made "for the benefit of the institution in considering Warden's appeals," for review by attorneys defending inmates in litigation, and for "improving the prison disciplinary process." Accordingly, the record of an inmate's prison disciplinary proceeding is "Part I and Part II of the Disciplinary Report Form and the inmate's appeal to the Warden, if any"; these records are submitted to circuit courts "upon appeal where an inmate alleges that his due process rights have been violated in the proceeding." Having summarized the relevant federal case law, Ms. Dennis clarifies that CPP 15.6 "clearly contemplates the situation where an audio tape of a prison disciplinary proceeding may be lost, or otherwise unavailable, which is what has happened in this case." 2 While such a scenario, i.e., a "lost" record," would normally be troubling and impermissible in our view, Ms. Dennis is correct in this assertion as evidenced by a review of the cited authority.
On August 24, 2006, Ms. Dennis supplemented her response on behalf of EKCC, attaching a copy of the written record of the "disciplinary write-up, investigation, hearing and appeal." Acknowledging that procedural due process for a disciplinary proceeding mandates that an inmate "have written notice of the charge and findings of fact from which the inmate may appeal to a court for relief" upon exhausting his administrative remedies, Ms. Dennis reiterates that an inmate does not possess a due process right to receive a copy of the audiotape, "nor is there any provision of Kentucky law that requires the [DOC] to maintain copies of audio tape recordings of the hearing." To the contrary:
Under the General Records Retention Schedule for State Agencies, audio recordings of meetings by entities that establish and administer policy -- such as the KY DOC does in its administration of 501 KAR 6:020, Corrections Policy & Procedure (CPP) 15.6 -- for which a written record is produced, may be destroyed thirty (30) days after the minutes have been transcribed and approved, unless challenged. [Footnote omitted] The Warden's decision on appeal of the matter was completed on March 17, 2006. The Warden's decision on appeal represents approval of the disciplinary action. To the extent Mr. Jones did not immediately appeal the Warden's decision to the Morgan Circuit Court, the [EKCC] had no obligation under KRS 171.640 or CPP 15.6 to maintain a copy of the audio tape recording past the thirty (30) day period set forth in the General Schedule for State Agencies -- Miscellaneous Records. I have spoken with James Cundy of the Kentucky Department for Libraries and Archives (KDLA) about this matter and the necessity of adding a schedule to the KY DOC Records Retention Schedule for audio tape recordings of prison disciplinary proceedings.
Reiterating her earlier arguments regarding the application of CPP 15.6 and due process, Ms. Dennis asserts that EKCC's denial should be affirmed "despite Ms. Litteral's initial procedural error" of informing Mr. Jones that he could "pick up a copy of a portion of an audiotape, which Ms. Litteral was unable to locate during a diligent search. " With the exception of the acknowledged procedural violation, this office finds no error in the response of EKCC as supplemented by Ms. Dennis.
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as EKCC obviously cannot produce for inspection or copying records 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 that an 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." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205. Accordingly, this office has repeatedly 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 affirmatively indicating that no responsive records exist (or are in the custody of the agency) as EKCC ultimately did here. 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. Under circumstances like those presented, our duty is not "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. 3 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. 4
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 by KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified timeframe); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency indicates that no such records exist (or denies having possession of the requested records), and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because EKCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, EKCC belatedly complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Jones that no responsive record was found, and providing a credible explanation as to why same cannot be located. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. When viewed in conjunction, 501 KAR 6:020, CPP 15.6 and Series No. M0049 of the General Schedule for State Agencies, entitled "Recordings of Meetings," establish that EKCC is not obligated to maintain records like those at issue for longer than 30 days after the minutes have been "transcribed and approved" unless challenged, or 30 days past March 17, 2006, in this case. Accordingly, this office has no basis upon which to conclude that EKCC violated the Open Records Act in failing to locate and produce the requested audiotape.
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 Because EKCC has conceded this procedural error, further elaboration is unnecessary.
2 According to Ms. Dennis, an inmate does not possess a "due process right to an audio tape recording of an adjustment proceeding." Although this may very well be true, the Attorney General makes no finding in this respect; constitutional issues are not justiciable in the context of an Open Records appeal.
3 Likewise, 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. See 04-OMD-182; 04-ORD-032; 02-ORD-89.
4 [ILLEGIBLE FOOTNOTE]