Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in denying James Mosley's written request for "[a]ll e-mail communications occurring on or about August 12, 2009, between James VanNort, Kentucky State Reformatory, 3001 West Highway 146, LaGrange, Kentucky 40032, and Rex Dunn, Western Kentucky Correctional Complex, 374 New Bethel Road, Fredonia, Kentucky 42411, wherein James Mosley (DOC 205708) was discussed or formed the subject matter thereof." Because KSR cannot produce for inspection or copying nonexistent records, and has affirmatively indicated that no such records exist in a timely written response, this office finds that no violation occurred. Public agencies are not required to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), nor does the Open Records Act empower this office to order a public agency "to create records, or declare its failure to do so a subversion of the intent of the [Act]." 96-ORD-139, p. 2.
By letter dated September 21, 2009, Mr. Mosley initiated this appeal, challenging the "refusal" of KSR to respond upon receipt of his September 4, 2009, request. Upon receiving notification of Mr. Mosley's appeal from this office, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, responded on behalf of KSR, initially advising that Laura Vestal, Offender Information Supervisor at KSR, responded to Mr. Milby's request by letter dated September 14, 2009, a copy of which is attached to Mr. Milby's letter, "indicating that no responsive records existed." 1 According to Mr. Milby, inasmuch as "there were no documents responsive to Mr. Mosley's request, Ms. Vestal acted appropriately in issuing a letter stating such, and no further action is required of the agency under the Kentucky Open Records Act. " Based upon the following, this office agrees.
Citing OAG 82-234, Ms. Vestal correctly observed that she is "not required to create a document(s) and/or record(s) which do [sic] not already exist." Ms. Vestal further indicated that she "contacted Dr. James VanNort with the Sex Offender Treatment Program in reference to [Mr. Milby's] request and was informed there is not an email" which is responsive. Because the record on appeal is devoid of evidence to the contrary, and KSR is not required to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005), this office has no basis upon which to find a violation.
As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those it does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right of inspection 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. 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 KSR has asserted in this case. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records (or lack of possession, 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 time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). When, as in this case, a public agency denies that any such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
Having affirmatively indicated to Mr. Mosley that no responsive e-mails exist in a timely written response, KSR discharged its duty under the Open Records Act relative to same. 05-ORD-109, p. 3; 02-ORD-144; 97-ORD-161; OAG 91-101; OAG 86-38. To hold otherwise would result in KSR "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm KSR's denial of Mr. Mosley'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-188 and 07-ORD-190. Assuming that KSR made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 2 as the record suggests, KSR cannot be said to have violated the Act in denying a request for a nonexistent record. 05-ORD-109, p. 3.
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 A copy of Mr. Mosley's request is attached to Ms. Vestal's letter, and the "Received" stamp indicates that she received it on Wednesday, September 9, 2009; accordingly, she complied with KRS 197.025(7) by issuing a written response on Monday, September 14, the fifth business day after she received the request. Mr. Mosley had presumably not received her September 14 letter as of September 21, the date on which his appeal was mailed. In any event, factual issues concerning the actual delivery and receipt of a request cannot be conclusively resolved in this forum.
2 "In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Ms. Vestal minimally satisfied the agency's burden of proof in confirming that she consulted Mr. VanNort who, in turn, confirmed that no e-mails matching the description provided exist, presumably following a reasonable search; however, KSR should have also specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96.