Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Parole Board violated the Kentucky Open Records Act in denying Keith Putty's October 19, 2009, request for a copy of the "entire transcript of the proceedings" from his Parole Board hearings in October 2004 and October 2008, "to include the deliberation phase before, during and after" his interviews, and "copies of letters and information used to ascertain their decision and the reasons behind such decision." Having advised Mr. Putty in writing that no audiotape recording of either parole hearing currently exists, and explained that Hearing Tapes, governed by Record Series No. 04540 of the Parole Board Records Retention Schedule, must only be retained by the agency for a period of six months, the Parole Board has fully discharged its duty under the Open Records Act; a public agency cannot produce nonexistent records. In accordance with 97-ORD-143 and 07-ORD-190, this office affirms the ultimate disposition of Mr. Putty's request.
In a timely written response, Mesha Rogers, Executive Staff Advisor, advised Mr. Putty that the "Parole Board does not have transcripts of parole hearings, but does possess audio tapes. " Ms. Rogers denied Mr. Putty's request for a transcript of "the deliberation phase" on the basis of KRS 61.810(1)(a). 1 In closing, Ms. Rogers informed Mr. Putty that documents contained in his "inmate file are maintained by the Kentucky Department of Corrections, Offender Information Services" and complied with KRS 61.872(4) in providing him with the address. Ms. Rogers further advised that she had "taken the liberty of forwarding" his request for these records to the DOC "for review and response." Mr. Putty subsequently initiated this appeal by letter dated October 30, 2009, in which he focused exclusively on the denial of his request for the specified transcripts/audiotapes; our analysis proceeds accordingly.
Upon receiving notification of Mr. Putty's appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of the Board. In relevant part, Ms. Barker explained:
Counsel has consulted with staff at the Parole Board and determined that the retention schedule for Parole Board hearing tapes is six months. (A copy of the pertinent page of the retention schedule is attached as exhibit 1.) Mr. Putty's request letter mentioned Parole Board hearings that occurred in October 2004 and October 2008. [DOC] records indicate that those hearings were held on 10/12/2004 and 10/09/2008. Mr. Putty's letter was dated October 19, 2009, and was received by the Parole Board on October 26, 2009. (A copy of the letter with date stamp is attached as exhibit 2.) Both of the tapes no longer existed at the time that the request was received by the Parole Board and the letter to Mr. Putty should have informed him of that information. Counsel has sent a reminder that the existence of the tape should be verified before a letter is sent to an inmate in the future. A public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98; 09-ORD-129. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150; 09-ORD-088.
Mr. Putty does not raise in his appeal, any issue concerning the response about other documents he requests. The [DOC] did send a letter dated October 27 to Mr. Putty pertaining to the costs to obtain copies of documents maintained in his inmate file. Mr. Putty does not attach this response to his appeal. Counsel has been informed that the [DOC] has not received any money or further correspondence about the documents from Mr. Putty. Counsel will not further address this issue unless additional information is requested since it is not an issue raised by Mr. Putty in his appeal.
Lastly, Mr. Putty indicates that he is pursuing his appeal to "prove misconduct of the Parole Board" and that they should not be allowed to use the statutes to hide from [j]ustice. The Attorney General's Office has acknowledged that it is not the proper forum for and cannot decide issues other than violations of the Open Records Act for appeals initiated under KRS 61.880[(2)(a)]. 08-ORD-142, p. 6; 99-ORD-121, p. 17.
By letter dated November 20, 2009, Ms. Barker supplemented her initial response on behalf of the Board. Ms. Barker advised that "[f]urther information obtained from Parole Board staff indicates that the deliberation phase is not taped and never existed." Accordingly, Ms. Barker reiterated her previous arguments regarding the inability of the Board to produce nonexistent records. Consistent with governing precedents, the Board's ultimate disposition of Mr. Putty's request is affirmed.
As the Attorney General has consistently recognized, a public agency cannot produce for inspection or copying nonexistent records; however, a public agency is required to deny the existence of the records in a timely written response if appropriate. Because the Parole Board has acknowledged initially failing to correctly advise Mr. Putty, this office will not belabor the issue. 2 With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis contained in 07-ORD-190, a copy of which is attached hereto and incorporated by reference, is controlling. 3 Since KRS 61.8715 was enacted in 1994, this office has applied a higher standard of review to denials premised on the nonexistence of the records being sought. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer a credible explanation for the nonexistence of the records at a minimum.
Although the Parole Board initially failed to rely upon the applicable retention schedule, the Parole Board has remedied this error on appeal. More specifically, the Parole Board has correctly advised this office that audiotapes of parole hearings ("Hearing Tapes" ) are governed by Record Series No. 04540 of the Parole Board Records Retention Schedule, developed by the Kentucky State Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061, the retention period for which is six months; the disposition instructions require the Parole Board to "[d]estroy or erase and reuse" such audiotapes after that period of time has elapsed. In our view, 97-ORD-143 is directly on point; a copy of that decision is attached hereto and incorporated by reference. A review of the attached Records Retention Schedule validates the Parole Board's assertion regarding the reason for the nonexistence of the responsive audiotape recordings. Because Mr. Putty's October 12, 2004, hearing was conducted five years before his October 19, 2009, request, and his October 9, 2008, hearing was conducted nearly a year before his October 19, 2009, request, the Board's assertion that both audiotapes were properly destroyed is entirely credible; accordingly, the Parole Board properly denied Mr. Brockett's request. See 08-ORD-011.
When, as in this case, the agency denies the existence of the records, and the evidence supports rather than refutes that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-136. As Ms. Barker correctly observed, the remaining issues Mr. Putty raised are not justiciable in this forum. See 99-ORD-121 (Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)"); 04-ORD-216 ("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"); 08-ORD-246 (Attorney General cannot "adjudicate a dispute regarding a disparity, if any," between records being sought and those provided).
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.
Keith Putty, # 135958Mesha RogersAmy V. Barker
Footnotes
Footnotes
1 Pursuant to KRS 61.810(1)(a), an exception to the Open Meetings Act, "[d]eliberations for decisions of the Kentucky Parole Board" may be held in a closed session. Consideration of this argument is unnecessary given that no records of any such proceedings exist here.
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2 As the Attorney General has frequently noted, a public agency's "inability to produce records due to their 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. In other words, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. See 09-ORD-019. Although the Board's initial response was deficient in this regard, the Board has acknowledged this error on appeal. Ms. Barker has also taken steps to ensure that future violations of this nature do not occur; accordingly, further analysis is unwarranted.
3 A copy of 07-ORD-188, the decision upon which 07-ORD-190 was premised, is also enclosed for the parties' reference.
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