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 Louisville Metro Department of Corrections violated the Kentucky Open Records Act in denying the request of Gregory Valentine for a copy of the "Record Series L2654 Visitors' Log, L2678 Inmate Phone Records, L2724 Telephone Log (Individual Inmate) and all records documenting the receipt and posting of mail to and from Gregory Valentine between the dates of March 7, 2002 and June 30, 2003." To the extent any visitors' logs do not contain a "specific reference" to Mr. Valentine, Louisville Metro properly relied upon KRS 197.025(2) in denying access; however, Louisville Metro is required to redact protected information and make the rest available per KRS 61.878(4). Insofar as release of inmate telephone records and logs would pose a legitimate threat to the security of the institution, Louisville Metro properly denied access on the basis of KRS 197.025(1); 05-ORD-034 is controlling on this issue. Although Louisville Metro cannot produce for inspection or copying the requested mail logs insofar as those records do not exist, nor can this office declare its failure to produce nonexistent records a violation of the Act, mail logs are unscheduled records and should therefore be retained until a retention schedule is established; the matter is referred to the Department for Libraries and Archives in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted regarding the records management issues raised by this appeal.
In a letter dated June 17, 2007, but notarized on June 18, 2007, Mr. Valentine requested the aforementioned records; Mr. Valentine initiated this appeal by letter dated July 24, 2007, challenging the failure of Louisville Metro to respond upon receipt of his request. Upon receiving notification of Mr. Valentine's appeal from this office, Suzanne D. Cordery, Assistant Jefferson County Attorney, responded on behalf of Louisville Metro, advising that Louisville Metro "has no record of receiving the open records request that forms the basis of this appeal. Further, the Department officials who routinely handle inmate open records requests have no personal recollection of this request." On August 15, 2007, Ms. Cordery directed a written response to Mr. Valentine, a copy of which she forwarded to this office. Quoting the language of KRS 61.878(1)(l), 1 KRS 61.872(6), 2 and KRS 197.025(1) and (2), 3 Ms. Cordery denied Mr. Valentine's request as follows:
You are denied inspection and copying of visitors' logs, inmate phone records, and telephone logs (individual inmate) , because the records you request do not specifically refer to you. Further, you are denied access to inmate phone records and telephone logs because the release of these records, created in the interest of jail security by the Louisville Metro Department of Corrections, would constitute a threat to the security of the operation of the jail if they are released to the public. OAG 79-546; and 95-ORD-121, citing KRS 61.872(6).
Finally, the Louisville Metro Department of Corrections does maintain a log of incoming legal mail to inmates; however, the Department does not retain logs that far back. The requested records do not exist.
Based upon the following, this office finds that Louisville Metro has partially complied with relevant provisions of the Open Records Act. More specifically, Louisville Metro properly relied upon KRS 197.025(1) and (2) in denying access but is required to redact any protected material from the visitors' logs and make the rest available per KRS 61.878(4). Although Louisville Metro cannot produce for inspection or copying any responsive mail logs if none exist, such records must be maintained in the absence of a specified retention period; the record on appeal raises records management issues.
In addressing factual disputes of the nature presented, the Attorney General has consistently observed:
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-061, p. 2, citing OAG 89-81, p. 3; See 04-ORD-036; 03-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Valentine's request for this office to conclusively resolve the related factual discrepancy. Absent objective proof to the contrary, this office does not have any reason to question the veracity of Louisville Metro and finds no violation in this regard. In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statute.
With regard to KRS 197.025(2), this office finds that governing precedents validate Louisville Metro's assertion. On this issue, 04-ORD-071, for example, is controlling; a copy of that decision is attached hereto and incorporated by reference; however, the analysis does not end there. Although Louisville Metro may withhold any responsive visitors' logs, or portions thereof which do not contain a specific reference to Mr. Valentine, the fact Louisville Metro will have to "separate confidential documents from nonconfidential documents [cannot] serve as a basis for denying a request under KRS 61.872(6)." 00-ORD-180, p. 7. To the contrary, "the presence of some exempt information in the . . . [logs] does not relieve [Louisville Metro] of its obligation to provide all nonexempt information." 97-ORD-6, p. 4. Pursuant to KRS 61.878(4):
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
If the reports which [the applicant] requests access to contain both exempt and nonexempt information, the department may delete the exempt information, after stating, in writing, the statutory basis for withholding that information. As we observed at page 3 of OAG 89-76:
Stated alternatively, "The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4.
97-ORD-6, p. 4-5. Based upon the foregoing, Louisville Metro is required to provide Mr. Valentine with a copy of any existing record, or portion thereof which is responsive to his request for visitors' logs during the specified time frame and contains a specific reference to him, if any exist, but may withhold any record, or portion thereof which does not in accordance with KRS 197.025(2); the record is unclear on this point.
With regard to "inmate phone records, and telephone logs, " KRS 197.025(1) authorizes Louisville Metro to deny access. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of requested records would constitute a threat to the security of the inmate requester, any other inmate, the correctional staff, the institution, or any other person, this office has declined to substitute its judgment for that of correctional facilities or the Department of Corrections; the instant appeal presents no reason to depart from this approach. Because Louisville Metro has satisfied its burden of proof under KRS 61.880(2)(c), Louisville Metro is entitled to withhold the records on the basis of KRS 197.025(1). In our view, the analysis contained in 05-ORD-034, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. In light of this determination, the remaining question is whether Louisville Metro properly denied Mr. Valentine's request as to any records "documenting the receipt and posting of mail to and from Gregory Valentine between the dates of March 7, 2002 and June 30, 2003."
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 91-ORD-17; OAG 91-112; OAG 83-111. It stands to reason that Louisville Metro cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only if the 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. 4
In addressing the obligations of a public agency when denying access to public records for this reason, 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 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 a public agency discharges its duty under the Open Records Act by affirmatively so indicating as Louisville Metro ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177; 99-ORD-98. When a public agency denies the existence of records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. As previously indicated, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1).
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. To satisfy its burden of proof under KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records 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 time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 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 investigation not in sheriff's custody because sheriff did not conduct the investigation).
Although Louisville Metro acknowledges maintaining a "log of incoming mail to inmates, " it denies Mr. Valentine's request because the records do not exist. Without further explanation, Louisville Metro asserts that it "does not retain logs that far back." Having reviewed both the Local Government General Records Retention Schedule issued by the Kentucky Department for Libraries and Archives, Public Records Division, Local Records Branch, and the Records Retention Schedule for Jailers (approved by the Archives and Records Commission in accordance with KRS 171.420(3)), this office has been unable to locate any reference to "mail logs" or comparable records. In other words, the mail logs at issue are not scheduled records; the undersigned has confirmed as much through the Department for Libraries and Archives. When previously confronted with such an issue, this office confirmed with the KDLA that records of the kind in question were unscheduled "and as such should be retained by the agency until a retention schedule is established for them." 04-ORD-040, p. 5. Just as in 04-ORD-040, this appeal "presents the occasion for [Louisville Metro] to work with the Department to schedule these and other previously unscheduled records." See 94-ORD-121. Accordingly, this office refers the matter to the Department for Libraries and Archives in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted.
To clarify, the Attorney General cannot afford Mr. Valentine the relief he seeks; rather, this office is not empowered to declare Louisville Metro's inability to produce nonexistent records a violation of the Act or to compel Louisville Metro to maintain records for a specific period of time. Because the latter prerogative resides with the KDLA and the Archives and Records Commission, this office respectfully defers to these entities on the question presented.
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 Among those records excluded from application of theOpen Records Act are those identified at KRS 61.878(1)(l) as:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 As repeatedly observed by this office, a "bare allegation that the request is unreasonably burdensome will not suffice." 99-ORD-119, p. 5. Rather, "it is incumbent on the agency to indicate, at least in general terms, the difficulty in identifying, locating, and retrieving the requested records." 99-ORD-71, p. 6, In the absence of any evidence to support Louisville Metro's bare allegation that granting Mr. Valentine's request would place an unreasonable burden on it, let alone the clear and convincing evidence required to successfully invoke KRS 61.872(6), this office finds that Louisville Metro's reliance upon this provision is entirely misplaced. On this issue, 04-ORD-028 (pp. 4-10) is controlling; this office urges Louisville Metro to review the analysis contained therein for guidance regarding the level of specificity required to satisfy the intentionally high evidentiary standard of KRS 61.872(6).
3 KRS 197.025(1) and (2) are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Those provisions read as follows:
(1) KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
(2) KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
4 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.