Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green River Correctional Complex violated the Kentucky Open Records Act in the disposition of inmate Kevin R. Black's March 15, 2010, request to inspect "[a]ny and all written communications from Mary Ann Sullivan (or any other Ky. DOC employee) to Teresa Shanklin (or any other GRCC employee) referencing or pertaining to the issue of my telephone recordings originating from a GRCC inmate telephone to my attorneys that were provided to police in 2009." Although GRCC mistakenly treated Mr. Black's request as if he asked for copies, which prompted him to initiate this appeal, Amy V. Barker, Assistant General Counsel for the Justice and Public Safety Cabinet, responded to his appeal on behalf of GRCC, advising that after being contacted, "GRCC acknowledged the error, made a search for the requested records, and sent a new response to Mr. Black on April 7, 2010." 1 In that response, a copy of which is attached to Ms. Barker's April 13, 2010, letter, Ms. Shanklin advised Mr. Black that she has "not received any written communication from Ms. Sullivan." She further indicated that no written communication "from DOC staff to GRCC staff concerning the topic" specified in his request was located in the search; accordingly, Ms. Shanklin acknowledged that the "appropriate response" from GRCC would have been "that there were no communications to provide" to him for inspection. As Ms. Barker correctly observed, "GRCC cannot afford a requester access to a record that it does not have or which does not exist. . . . The agency discharges its duty under the Open Records Act by affirmatively so stating. . . ." 2 Based upon the following, this office finds no error in the agency's ultimate disposition of Mr. Black's March 15, 2010, request.
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 GRCC ultimately 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 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. See also 07-ORD-190.
Having ultimately indicated to Mr. Black that no responsive communications exist in a timely written response, GRCC discharged its duty under the Open Records Act relative to his request. 05-ORD-109, p. 3; 02-ORD-144; 97-ORD-161; OAG 91-101; OAG 86-38. To hold otherwise would result in GRCC "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 the agency's denial of Mr. Black'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. Assuming that GRCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 3 as the record suggests, GRCC cannot be said to have violated the Act in denying a request for nonexistent records. 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.
Kevin R. Black, # 081258Vanessa DortchAmy V. Barker
Footnotes
Footnotes
1 Inasmuch as the law in this area is well-established, the parties are clearly familiar with the relevant statutory provisions, and GRCC has conceded that an error was made, this office will not belabor the point.
2 Ms. Barker advised that the only document relating to said telephone recordings "was a memo sent to Mr. Black from the Warden, which Mr. Black's spouse has attached in a separate appeal." Because this memo "was not part of the category of records requested by Mr. Black," as Ms. Barker correctly observed, this office finds no error in her guidance to him, indicating that if he wishes to inspect the memo from the Warden to himself, "he may send a request to the open records coordinator at GRCC and request to inspect that memo. "
Similarly, GRCC acknowledged that an Open Records request from Mr. Black's spouse was forwarded to GRCC from Central Office by e-mail, "but Ms. Shanklin did not retain it after it was no longer needed. General Correspondence may be retained up to two years, but does not have to be retained after it is no longer needed. " This assertion is correct. See 09-ORD-195 (copy attached). Significantly, Ms. Barker advised that the e-mail is not responsive to Mr. Black's request since it contained an Open Records request as opposed to relating to his telephone recordings.
3 "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). However, GRCC should have also specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96.