Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Green River Correctional Complex and Northpoint Training Center 1 violated the Kentucky Open Records Act in denying inmate Jared Derkson's separate but nearly identical February 16, 2010, written requests for a copy of "all the statements made to C.T.O. Stefany Thornberry by Lt. Simpson, and C.O. M. Tapscott, that led to Jared Derkson # 21189's Category VI-1 Rioting Disciplinary Reports that were issued by, signed by, and dated by N.T.C.'s C.T.O. Stefany Thornberry September 22, 2009, and December 14, 2009." GRCC cannot produce nonexistent records, or those in the possession of a different agency for inspection or copying, nor did NTC err in denying access to the requested statements, which are part of the extraordinary occurrence report, on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
In a timely written response, Vanessa Dortch, Offender Information Specialist I, advised Mr. Derkson that a copy of his "Disciplinary Report Form Part I-Write-up and Investigation reported and signed by CTO Stefany Thornberry" on December 14, 2009, the "only document responsive" to his request, was being provided. GRCC denied his request for the statements on the basis of KRS 61.872(5), arguing that it "requires that immediate access be given to the applicant if the record is in active use, in storage, does not exist or cannot be located," and noting that agencies are not required to "carry out research or compile information to conform to a given request." (Citation omitted.) Relying upon KRS 61.878(1)(h) and KRS 197.025(1), NTC denied Mr. Derkson's request.
Upon receiving notification of Mr. Derkson's appeal 2 challenging the actions of GRCC, Jonathan S. Milby, DOC Staff Attorney, responded on behalf of the agency by letter dated March 10, 2010, initially noting that Mr. Derkson "requested documents containing statements made by and recorded by [NTC] personnel regarding disciplinary violations committed by Mr. Derkson during the August 2009 disturbance [at NTC]." In relevant part, Mr. Milby then explained:
[Ms. Dortch] received Mr. Derkson's request on February 19, 2010 as indicated by the date stamp on Mr. Derkson's request form, and responded on February 26, 2010, within the five business days allowed by KRS 197.025[(7)]. In her response, she indicated that the only responsive documents in her possession were questions submitted by Mr. Derkson to CTO Thornberry in connection with his adjustment hearing. While Mr. Derkson asserts that Ms. Dortch deceived him in some manner, this simply is not true. The records Mr. Derkson appears to refer to in his appeal are statements by DOC personnel contained in the extraordinary occurrence report generated by NTC. GRCC personnel do not have access to this report except for the limited purpose of use in adjustment hearings. No documents from the EOR are attached to any inmate's disciplinary report. Accordingly, if Mr. Derkson wished to make a proper request for those documents, he would have been required to send his request to the records custodian at NTC, not GRCC. Mr. Dortch was correct in asserting that the only responsive records in her possession were the records provided to Mr. Derkson.
Although GRCC violated KRS 61.872(4) in failing to furnish Mr. Derkson with "the name and location of the official custodian" at NTC, and misquoted KRS 61.872(5), which actually dictates the circumstances under which access may be delayed, 3 rather than denied entirely, the fact remains that GRCC was not statutorily required to produce records in the possession of a different public agency.
With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records or those which it does not possess, the analysis contained in 10-ORD-005 (pp. 7-10), the decision upon which Mr. Derkson relied in support of his position regarding application of KRS 197.025(1), is controlling; a copy of 10-ORD-005 is attached hereto and incorporated by reference. As previously indicated, the Attorney General has consistently recognized that 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 GRCC has twice asserted here. This office has consistently so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5.
In response to both Mr. Derkson's request and his appeal, GRCC maintained that no responsive statements were in the possession of the agency. GRCC now finds itself in the untenable position of having to "prove a negative" in order to conclusively refute Mr. Derkson's claim that no responsive statements exist in the possession of the agency. This assertion is entirely credible given that NTC personnel apparently created the statements, which are contained in the EOR also generated there. 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 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." 4 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. Because no prima facie showing has been made, this office affirms the agency's ultimate disposition of the request in accordance with Bowling and prior decisions. To hold otherwise would result in GRCC "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7.
In light of this determination, the remaining question is whether NTC violated the Act in denying Mr. Derkson's request on the basis of KRS 197.025(1). Anticipating that Mr. Derkson would eventually appeal from that facility's denial of his request as well, in his March 10, 2010, response Mr. Milby argued:
Notwithstanding the fact that Mr. Derkson has not yet submitted a proper request for the documents he seeks, it would seem prudent at this point to address the substance of his complaint, as he will inevitably be denied the records he is seeking should he send a request to NTC. Contrary to his assertion, this matter has been decided in 10-ORD-005. In that [decision], the OAG noted that the DOC had agreed to release four information reports from correctional officers as requested. These information reports were the same material that Mr. Derkson received from GRCC - the responses to questions posed by the inmate to officers who witnessed the events in question. The DOC never intended to release the EOR pursuant to this request, as it remains the subject of ongoing criminal investigations by the [Kentucky State Police] and also clearly poses significant security threats if released to the inmate population at large. This office affirmed the DOC's position and stated that "NTC properly relied on KRS 197.025(1) in denying access to the . . . EOR." Thus, to the extent Mr. Derkson wishes to request statements that are part of the EOR, the matter has already been decided.
Upon receipt of Mr. Milby's response, Mr. Derkson advised that he sent a request to each agency, but received a denial from NTC at a later date; attached to Mr. Derkson's March 12, 2010, letter is a copy of his February 16 request (received there on February 22) and the agency's February 24 response. Mr. Derkson also disputed "that the four (4) information reports that the DOC agreed to release to Aaron Fisk and the responses to the questions" he submitted are one and the same, again relying upon language from 10-ORD-005.
In a recent appeal by Mr. Fisk, which resulted in 10-ORD-056, he indicated that he received the wrong statements in response to his previous request, which resulted in 10-ORD-005, just as Mr. Derkson argues that here. Because the ultimate disposition of his request by NTC in the former appeal was nearly identical to that which culminated in the latter appeal, this office found the reasoning of 10-ORD-005 equally applicable in that case. Of particular significance, this office clarified:
In 10-ORD-005, this office, in relevant part, affirmed the denial by NTC of Mr. Fisk's request for the subject EOR on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Given the purported discrepancy between the statements being sought and those already provided [as in this case], the undersigned counsel asked Mr. Milby to clarify the agency's initial response, which contained no reference to the EOR, but denied access to the "original Officers' reports from the evening of August 21, 2009" on the basis of KRS 197.025(1). Mr. Milby explained that the "statements Mr. Fisk requested were made by the officers during the investigation of the NTC disturbance, and are part of the EOR[,]" which "includes a large amount of material generated in the investigation of the incident, including witness statements by both inmates and staff." According to Mr. Milby, "[t]he only responsive documents that are not part of the EOR are the statements in response to the written questions Mr. Fisk was allowed to pose to the officers, so those were the documents offered to him." Having confirmed that any responsive statements not already provided to Mr. Fisk are part of the subject EOR, which is exempt per 10-ORD-005, this office affirms the agency's disposition of his request.
10-ORD-056, p. 2 (Emphasis added).
In our view, this reasoning is controlling on the facts presented; likewise, the reasoning found at pp. 2-3 is controlling relative to application of KRS 197.025(1). A copy of 10-ORD-056 is attached hereto and incorporated by reference. Because NTC has again confirmed that any responsive statements not already provided to the inmate requester are part of the subject EOR, which is clearly exempt per 10-ORD-005 (holding that subject EOR was properly withheld on the basis of KRS 197.025(1)), this office reaches the same result.
Since KRS 197.025(1) was enacted in 1990, this office has affirmed denials by correctional facilities of requests for various kinds of records on that basis. See, for example, OAG 91-136; 92-ORD-1314; 96-ORD-179; 96-ORD-204; 97-ORD-25. In addition to 10-ORD-005 and 10-ORD-056, this office has recently affirmed other denials by NTC of inmate requests for various records, including the EOR, concerning the incident on August 21, 2009, pursuant to KRS 197.025(1); the instant appeal presents no reason to depart from these governing precedents. See 10-ORD-008 (all documents containing name of inmate and information reports, including EOR); 10-ORD-025 (EOR and related incident reports); 10-ORD-026 (EOR and related incident reports); 10-ORD-028 (statements relating to same incident). When asked to apply the expansive language of this confidentiality provision, the Attorney General has consistently 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. In a reasonable exercise of its discretion, NTC/DOC determined that disclosure of the documents in dispute would constitute a legitimate security threat. As in 10-ORD-056, the inmate requester "has already been provided with the only statements to which he is entitled." Id., 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.
Jared Derkson, # 211889Vanessa DortchJonathan S. Milby
Footnotes
Footnotes
1 By letter dated February 26, 2010, Mr. Derkson initiated his appeal challenging the disposition of his request by GRCC; however, upon receipt of the Department of Corrections' response, which addressed not only the denial by GRCC but also the merits of any issues that would arise in the event he subsequently filed a separate appeal challenging the denial by NTC, Mr. Derkson submitted the documentation required under KRS 61.880(2)(a) to perfect a separate appeal challenging the February 24, 2010, denial by NTC.
Mr. Derkson set forth his arguments relative to NTC in his March 12, 2010, letter of appeal. Because Mr. Milby also preemptively addressed the merits of any relevant issues on behalf of NTC in anticipation of a subsequent appeal, this office, in the interest of efficiency, will resolve both appeals in this decision as neither party will suffer any prejudice as a result of this approach.
2 In his letter of appeal, Mr. Derkson asserted that Ms. Dortch "is not making a [g]ood [f]aith effort to locate these records, or she is concealing or destroying the requested documents." Mr. Derkson also indicated that he "borrowed the language directly out of [10-ORD-005 (Aaron Fisk/NTC)], to ensure that Ms. Dortch could not claim the documents were a threat to security." Suffice it to say that claims of records concealment and/or tampering are not justiciable in this forum, 10-ORD-005 does not support Mr. Derkson's position, and the record on appeal establishes that GRCC's response was timely per KRS 197.025(7).
3 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
4 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."