Request By:
Ricky Fulcher, # 162001
Klaytor Burden
Stafford Easterling
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Western Kentucky Correctional Complex did not violate the Open Records Act in its response to Ricky Fulcher's September 14, 2009, request for a copy of:
The disciplinary report written against Ricky Fulcher # 162001 by Sgt. Meredith, investigated by Sgt. M. Brush, 4-17-09, Category 4.2 Unauthorized Use of Drugs; also a copy of the disposition of said disciplinary report, and part - II of said disciplinary report.
WKCC responded to Mr. Fulcher's request on September 17, 2009, by providing him with six copies and assessing him a sixty cents copying charge. On appeal, Mr. Fulcher complains that the particular record he is seeking, namely, the disposition of the April 17 disciplinary report, has not yet been produced.
In supplemental correspondence directed to this office following commencement of Mr. Fulcher's appeal, Justice and Public Safety Cabinet Staff Attorney Stafford Easterling provided a lucid explanation for the apparent discrepancy between the records Mr. Fulcher requested and the records he received. Mr. Easterling explained:
Fulcher is requesting release of the disposition of the original 4/17/09 disciplinary report; however, in accordance with Department of Corrections policy, that report was amended in the subsequent 5/4/09 disciplinary report. The 5/4/09 report contains the statement "[t]his disciplinary report is a re-write from the original report dated from 4-17-09." Because the 4/17/09 disciplinary report was rewritten, it was treated as if it was dismissed or expunged; that is, the disciplinary report was not electronically entered into the inmate's Kentucky Offender Management System (hereinafter "KOMS") folder and only a paper copy of the report was retained. The paper copy of the report was not retained with the completed disciplinary documents since it was superseded by a new write up. A copy of the original write up was later found at GRCC in another location. The previous response mistakenly indicated that the original write-up was provided to Fulcher along with the 5/4/09 rewrite. Fulcher was previously provided a copy of that 4/17/09 report at the time of the original write up and included it in his open records appeal. Upon receipt of a proper authorization for inmate money transfer form, WKCC will provide an additional copy of the 4/17/09 report, if that is sought by Mr. Fulcher. No separate disposition was made of the original write up. It was superseded by the rewrite and a disposition was made of that write up. All of the existing disposition documents were provided to Mr. Fulcher.
On this basis, Mr. Easterling asserted that WKCC did not violate the Open Records Act. We agree.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 1 pertaining to management of public records, the Act regulates access to public records that have been prepared, owned, used, or are in the possession of or retained by a public agency. 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 subject to public inspection. Thus, in an early opinion the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6) ).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). 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.
WKCC explains that the record Mr. Fulcher seeks, namely, the disposition of the April 17, 2009, disciplinary report, does not exist because the report was amended by the May 4, 2009, report, and thereafter treated "as if it were dismissed." Simply put, "No separate disposition was made of the original [April 17, 2009,] write up." Like other agencies before it, WKCC finds itself in the position of "proving a negative" relative to its custody of the record sought. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 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.
On this basis, the Court concluded "that before a complaining party is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie 2 showing that such records do exist."
Mr. Fulcher makes the unsubstantiated claim that "in order to issue a subsequent accusatory instrument the original must be disposed of and some written documentation generated," that "there must be some disposition recorded," and that WKCC "is required to maintain [the disposition] for twenty years." He offers no supporting evidence, prima facie or otherwise, that this is the case. In the absence of such evidence, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government , above, to affirm WKCC's position. Accord, 09-ORD-009; 07-ORD-218; 07-ORD-045; 06-ORD-042.
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 See, KRS 61.8715.
2 Black's Law Dictionary , 1071 (5th ed. 1979), defines the term prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."