09-ORD-095 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether Western Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Gregory Valentine's May 6, 2009, request to inspect "[a]ll log entries documenting both incoming and outgoing privileged communications of Gregory Valentine (DOC 163775) between February 19, 2009, and the present." Because the information redacted from the records made available for inspection did not contain a "specific reference" to Mr. Valentine, WKCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) in withholding same. WKCC is not required to produce nonexistent records for inspection or copying nor must WKCC "prove a negative" in order to refute Mr. Valentine's claim that additional records exist.

By letter dated May 14, 2009, Klaytor Burden, Offender Information Supervisor, advised Mr. Valentine that "certain information" had been redacted from the responsive log entries provided for inspection pursuant to KRS 61.878(1)(a). 1 Mr. Valentine declined to sign where indicated as the records did "not involve any possible responsive records related to items of privileged correspondence posted via institutional indigent procedures whereby execution of a cash payout authorization is not required." In his view, the agency's response failed to "respond in an appropriate fashion" to his request "as it relates to these records."

By letter of the same date, Mr. Valentine initiated this appeal, reiterating that he was permitted to inspect "an incomplete portion of records responsive to his request. Not included were those items of legal correspondence posted pursuant to his monthly institutional stipend of indigent postage" and specified dates "for which cash payout authorizations were executed[.]" Upon receiving notification of Mr. Valentine's appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of WKCC. In addressing Mr. Valentine's complaint, Ms. Barker explained that he "was allowed to inspect log entries pertaining to him for the requested time frame. Entries that did not pertain to Mr. Valentine, but instead to other inmates were correctly redacted pursuant to KRS 61.878(1)(a) and (l) and KRS 197.025(2). The redacted entries did not contain references to Mr. Valentine." 2 According to Ms. Barker, the "records about which Mr. Valentine complains do not exist and WKCC cannot allow inspection of records that do not exist." Attached to Ms. Barker's written response is a copy of the letter which Mr. Burden directed to her on May 26, 2009, 3 in which he explained that he "double checked the redacted entries to make sure that no entries pertaining to Mr. Valentine were inadvertently redacted" and confirmed that Mr. Valentine "was allowed to inspect all entries in the log book that pertained to him for the requested time frame. " Because KRS 197.025(2) authorizes WKCC to withhold records or, in this case, log entries, which do not contain a specific reference to him and the agency is not statutorily required to produce for inspection or copying nonexistent records, the Attorney General finds that no violation occurred. Factual disputes concerning discrepancies between the records being sought and those provided for inspection cannot be resolved in the context of an Open Records appeal. 03-ORD-061, p. 2.

With regard to application of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the analysis contained in 04-ORD-076 and 03-ORD-073 is controlling; a copy of each decision is attached hereto and incorporated by reference. As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes correctional facilities like WKCC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the entries at issue do not contain a specific reference to Mr. Valentine, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Valentine may believe that application of KRS 197.025(2) imposes, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, WKCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in redacting the specified entries from the responsive log pages. 99-ORD-161, p. 2. See also 07-ORD-219; 03-ORD-074.

Insofar as WKCC does not possess additional records which are responsive to Mr. Valentine's request, nothing more is required of the agency. As the Attorney General has recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought 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. 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 indicating that no such records exist (or are in the possession of the agency) as WKCC has twice asserted here. 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; 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; 94-ORD-140. To reiterate, our scope of review is expressly limited by the language of KRS 61.880(2)(a).

Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 4 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. 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); 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 in this case, a public agency denies that any such records exist, and the record on appeal does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.

Both initially, and in responding to Mr. Valentine's appeal, WKCC asserted that no documents exist which are responsive to his current request aside from those already provided. WKCC now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Mann's claim that additional records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed:

The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.

. . .

[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.

Nevertheless, the Court continued:

[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.

For these reasons, the Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 5

In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based on the nonexistence of responsive records in the absence of a prima facie showing that the records sought did, in fact, exist. See, e.g., 07-ORD-190; 07-ORD-188; 06-ORD-223; 06-ORD-042. Because the instant appeal presents no reason to depart from governing precedents, the same result necessarily follows here.

In our view, the analysis contained in 07-ORD-190 and 07-ORD-188 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, this office is compelled to affirm WKCC's disposition of Mr. Valentine's request in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-190 and 07-ORD-188. To hold otherwise would result in WKCC "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "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 the Act. 6 OAG 89-81, p. 3.

In 05-ORD-236, the Attorney General expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." Id., p. 3 (reporter questioned the validity of invoices produced in response to request, and the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 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 these decisions, the Attorney General 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 and, therefore, declines to assign error on this basis. If Mr. Valentine has evidence that WKCC willfully concealed or tampered with records, he may wish to consider the options available under KRS 61.991(2)(a); such issues cannot be resolved in this forum, nor does the record on appeal contain any evidence of such wrongdoing.

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.

Gregory Valentine, # 163775Klaytor BurdenAmy V. Barker

Footnotes

Footnotes

1 Insofar as Mr. Burden merely parroted the language of the cited exception, rather than specifying which information was being withheld and briefly explaining how KRS 61.878(1)(a) applied, his response violated KRS 61.880(1).