10-ORD-005 | KOGC

Opinion

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

Open Records Decision

At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in the disposition of a series of requests made by inmate Aaron Fisk during November 2009. Having established that disclosure of certain records would constitute a legitimate security threat, NTC properly denied access on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). NTC is not required to produce nonexistent records nor must NTC "prove a negative" in order to refute a claim that certain records exist. With regard to records that NTC has agreed to provide Mr. Fisk with upon receipt of a completed money authorization form, any related issues are moot per 40 KAR 1:030, Section 6. 1 In sum, the agency's ultimate disposition of each request is affirmed.

By letters received in this office December 4, 2009, Mr. Fisk simultaneously appealed from the responses of NTC to seven different requests. In relevant part, his requests and the corresponding responses are below:

11/10/09: Mr. Fisk requested a copy of his "phone call from 8/21/09 at 6:00 p.m. I have phone logs showing this call if you need [them]."Mr. Fisk indicated on appeal that he "lost the denial statement" NTC provided to him. 2

11/16/09: Mr. Fisk submitted two requests. First, he asked for "copys [sic] of the following video footage to send to my lawyer. Handheld camera outside fence facing Multipurpose bld. [sic] Camera on top of the old hospital outside fence facing Multipurpose building." Next, Mr. Fisk requested "copys [sic] of all the statements made to Stefanie Thornberry by the following officers that led to my 6-1 and 6-3 writeups [sic]. C.O.W. Folger, C.O.N. Goodbey, C.O. T. Long, and C.O. J. Cabrera. I have already been convicted of these writeups [sic], so the investigation is over, therefore I need these statements."

11/17/09: 3 Offender Information Specialist Andrea M. Windsor advised Mr. Fisk that said records "are the subject of an ongoing criminal investigation by Kentucky State Police into allegations that, on August 21, 2009, there was a disturbance that took place at [NTC]." Citing KRS 61.878(1)(h), Ms. Windsor explained that NTC records "compiled in connection with the current criminal investigation are exempt from disclosure" given that disclosure "may constitute the premature release of information to be used in a prospective criminal action." Ms. Windsor also noted that "[a]llowing inmates to possess copies of videotapes made at the institution has been deemed a security threat by the Warden of [NTC], because the videotape reveals the facility's methods or practices used in obtaining the video. " In addition, "the videotape shows areas where the camera is capable of focusing and observing and blind spots outside the camera's range. It is impossible for NTC to redact the tape and eliminate the security concern." For these reasons, NTC denied Mr. Fisk's requests "for the actual statements made by the Correctional Officers and a copy of the video footage from the night of 8/21/09 is denied pursuant to KRS 61.878(1)(l) andKRS 197.025(1). See also 04-ORD-017."

11/17/09: Mr. Fisk again submitted two separate but related requests. First, he asked for "copies of the EOR [Extraordinary Occurrence Report] on 8/21/09 about my 6-1 and 6-3 write[-]ups. I have been convicted of these write[-]ups [sic] therefore the investigation is over." Next, Mr. Fisk requested "copies of [two specified] court call tapes" from November 4, 2009.

11/20/09: Ms. Windsor denied the first November 17, 2009, request on the basis of KRS 61.878(1)(h), reiterating her previous argument. In the alternative, NTC invoked KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , and explained to Mr. Fisk that because the EOR "does not contain a specific reference to you, the record is exempt from disclosure to you under" these provisions. Ms. Windsor also quoted the language of KRS 197.025(1) again.

11/23/09: Ms. Windsor denied Mr. Fisk's second November 17 request on the basis of KRS 61.878(1)(h), because those records were also "compiled in connection with the current criminal investigation by [KSP]...."

11/20/09: Mr. Fisk requested "copies of the investigation so far on restitution for me. I need copies of how total amounts are being made [and c]opies of who came up with these amounts."

11/25/09: Ms. Windsor advised Mr. Fisk that "amounts for restitution have not been decided yet. According to 200 KAR 1:020, regarding compiling information/creating documents/specially tailoring format, a public agency is not required to compile information or to create a document that does not already exist in response to an open records request." However, Ms. Windsor indicated that "[w]hen the amount has been decided on, the Inmate Accounts Department will send you [a] letter explaining the amount that will be charged to you."

11/24/09: Mr. Fisk asked for "a copy of the report the [C]ommissioner or his designee wrote that says my records are a security threat and why. KRS 61.884KRS 61.878. [sic]"

11/25/09: Ms. Windsor quoted the language of KRS 197.025(1) but advised that no report existed, "only a verbal order." Ms. Windsor also relied upon 200 KAR 1:020. See previous argument.

Upon receiving notification of Mr. Fisk's appeal(s) from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. With regard to Mr. Fisk's request for the specified video recordings, Ms. Barker essentially reiterated the agency's position relative to KRS 197.025(1) and 61.878(1)(h), correctly observing in reference to the former that the Attorney General "has found that prison video may be withheld for security reasons." Ms. Barker also noted that the "majority of the video is unlikely to contain images of Mr. Fisk and any portion of the video that does not show Mr. Fisk would additionally be exempt because it does not contain a specific reference to him. KRS 197.025(2)." As to statements made by named officers, "NTC has identified an information report by each of the four officers that are connected to the two pending disciplinary actions concerning Mr. Fisk." NTC maintains that exceptions apply; however, "NTC has sent a letter to Mr. Fisk agreeing to provide copies of the four information reports if Mr. Fisk provides [an Authorization to Use Inmate Account Form for] the cost of copies." 4 A copy of the December 22, 2009, letter is attached to Ms. Barker's response.

In addition to KRS 61.878(1)(h) and KRS 197.025(2), upon which NTC initially relied in denying access to the requested EOR, Ms. Barker argued that KRS 197.025(1) "can also be asserted concerning the EOR because it contains detailed information that could be a security risk in the hands of inmates within the facilities. The Office of the Attorney General has excluded EORs in the past on this exception." Although NTC properly relied on KRS 61.878(1)(h) in Ms. Barker's view, she asserted, in the alternative, that NTC could have declined to honor the request for audiotapes of the original administrative hearings on his two disciplinary actions "because Mr. Fisk is housed in the segregation unit and cassette tapes are not allowed in segregation. " Citing KRS 61.872(3), Ms. Barker correctly noted that NTC is not obligated to provide a copy of the "audiocassette tape to a third party or even to store the audiocassette tape with an inmate's personal property pending the inmate's release from segregation. " Rather, "if the circumstances of a person's incarceration prohibit the person from inspecting a public record, a public agency may also properly deny" a request for a copy of the record pursuant to KRS 61.874 as the Attorney General recognized in 03-ORD-152 and 95-ORD-105. Although NTC has no statutory obligation to make "special arrangements for Mr. Fisk regarding the cassette," NTC sent a letter to him advising that arrangements will be made to "place the cassette tape in storage until he may have the copies or make arrangements concerning them" 5 upon his completion of an Authorization to Use Inmate Account Form.

With regard to Mr. Fisk's request for "copies of the investigation so far on restitution" and his request for the report from the Commissioner advising that disclosure of the records being sought would constitute a security threat, Ms. Barker confirmed that no record matching either description exists and correctly argued that NTC "cannot provide documents that do not exist. Some of the documents requested may never exist because they may not be created. It is expected that a document will exist concerning the amount of restitution for an inmate from whom restitution is sought." In the meantime, NTC "cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98, 09-ORD-129." Ms. Barker correctly observed that a public agency "discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150, 04-ORD-43, 09-ORD-088." Although Mr. Fisk takes issue with NTC's assertion that "the security threat was verbal and not written[,]" Ms. Barker advised that the "Department of Corrections does not and is not required to prepare a written document when a security risk determination is made."

Because NTC properly relied upon KRS 197.025(1) in denying access to the requested videotape recordings and EOR, the agency's ultimate disposition of the requests is affirmed in its entirety; NTC cannot produce nonexistent records for inspection or copying nor must it "prove a negative" in order to refute Mr. Fisk's claim that any responsive, non-exempt records exist aside from the "four information reports" and the audiotapes NTC has agreed to provide.

Resolution of this appeal turns partially on the application of KRS 197.025(1), which provides:

KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, 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.

As NTC correctly observed, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.

By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190. Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public based on KRS 197.025(1) for conflict sheets (OAG 91-136); psychological evaluations of inmates (OAG 92-25, 92-ORD-1314); facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204); facility deficiency reports (96-ORD-222); records confirming that inmates submitted to HIV testing (96-ORD-243); and inmate honor dorm waiting lists (97-ORD-33). This list is illustrative rather than exhaustive.

In our view, the analysis contained in 04-ORD-017 (affirming denial of request for prison videotape) and 07-ORD-039 (affirming denial of request for EOR in its entirety), is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In a proper exercise of its discretion, NTC determined that disclosing either the requested videotape (s) or the requested EOR would pose a security threat. As previously noted, the Attorney General has consistently recognized that KRS 197.025(1) vests the Commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 00-ORD-125. Accordingly, this office has declined to substitute its judgment for that of the correctional facility or the Department of Corrections; the instant appeal presents no reason to depart from this approach. NTC properly denied these requests on the basis of KRS 197.025(1). 6 In light of this determination, the question becomes whether NTC violated the Act in denying Mr. Fisk's request for the "investigation" concerning the amount of restitution that he owes and his request for the report from the Commissioner, both of which NTC maintains do not exist.

As the Attorney General has consistently 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. Rather, 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. 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 as NTC 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. Under the circumstances 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.

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, 7 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 resolving Open Records disputes are thus 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 00-ORD-120 (x-rays of an inmate's injuries were not taken and thus did not exist); 97-ORD-17 (evaluations not in University's custody because University regulations did not require written evaluations). When, as here, a public agency denies that any responsive documents exist beyond those provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.

In responding to both of the requests at issue and Mr. Fisk's appeal, NTC affirmatively indicated that no responsive documents were created. NTC now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Fisk's claim that documents concerning the amount of restitution and the security threat determination currently 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." 8 In a series of decisions issued since Bowling, this office has affirmed public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference. Because no prima facie showing has been made, this office affirms the agency's disposition of the request in accordance with Bowling and prior decisions. To hold otherwise would result in NTC "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7.

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.

Aaron Fisk, # 216479Andrea M. WindsorAmy V. Barker

Footnotes

Footnotes

1 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087.