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 partially denying Michael Dean's May 25, 2010, request for "an electronic record of its meetings, a written record of votes of individual members, and the reasons for denying" his parole, as well as "any and all documents submitted by a Parole Officer and[/]or Commonwealth['s] Attorney, to board members for review." This office affirms the agency's denial as to "any and all documents submitted by a Parole Officer" on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). A public agency cannot produce nonexistent records for inspection or copying nor is a public agency required to "prove a negative" in order to refute a claim that additional records exist in the absence of a prima facie showing under governing case law; accordingly, the Parole Board ultimately discharged its duty in affirmatively indicating that no additional responsive records exist with the exception of the Parole Board "decision sheet" (containing votes and reasons), which it has agreed to provide upon receipt of the copying fee and postage. 1
Charles A. Wilkerson, Executive Director of the Parole Board, advised Mr. Dean by letter dated June 8, 2010, that he was forwarding the request for documents (contained within his "Appeal for Reconsideration" of the Board's May 6, 2010, decision regarding his parole) , which the Board received on June 4, 2010, to the Department of Corrections, Offender Information Services. On June 8, Ashley Sullivan, Administrator, OIS, issued a written response denying Mr. Dean's request for "any and all documents . . . ." on the basis of KRS 439.510, noting that KRS 61.878(1)(l) incorporates that provision into the Open Records Act. Ms. Sullivan did not address the remainder of Mr. Dean's request. This appeal followed.
Upon receiving notification of Mr. Dean's appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of the Parole Board, initially advising that DOC "maintains the records indicated by Mr. Dean for the Parole Board other than the recordings of its meetings." Ms. Barker acknowledged that the Board inadvertently failed to respond concerning Mr. Dean's request for the "electronic record of its meetings" pertaining to him; however, a supplemental response was issued advising that "no recording existed since Class D inmates receive file reviews and no recording is made." A copy of the Board's July 16 letter was attached to Ms. Barker's response. Citing prior decisions by this office, Ms. Barker correctly argued that a "public agency 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."
Ms. Barker then quoted the language of KRS 61.878(1)(l) and 439.510, correctly observing that the "Attorney General's Office has upheld the denial of parole records, including documents submitted by a Parole Officer made confidential" under these statutory provisions "in numerous decisions." Because the documents that Mr. Dean requested "were prepared by his parole officer in the discharge of official duties," Ms. Barker argued, "these records are exempt from disclosure. " With regard to Mr. Dean's request for "a written record of votes of individual members, and the reasons for denying parole, " Ms. Barker acknowledged that the Parole Board also initially failed to address it; however, the requested information "is contained in the Parole Board decision sheet and the cost of that record was forwarded to Mr. Dean in a supplemental response to his request dated July 19, 2010." 2 A copy of the July 19 letter was attached to Ms. Barker's response. Ms. Barker explained that the Parole Board's supplemental response also addressed Mr. Dean's request for any records that were submitted by the Commonwealth's Attorney for the Parole Board to review. No such records were located. In closing, Ms. Barker correctly observed that an Open Records Appeal is not the proper forum in which to resolve issues other than violations of the Open Records Act; accordingly, the issues regarding Mr. Dean's parole discussed in his letter of appeal cannot be resolved here. Based upon the following, this office affirms the Parole Board's ultimate disposition of Mr. Dean's request in its entirety.
Among those records excluded from application of the Open Records Act by operation of KRS 61.878(1) are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." As noted, KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides:
All information obtained in the discharge of official duty by any probation and parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board or cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. . . .
In construing this provision, the Attorney General has observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987), the Kentucky Supreme Court suggested that its purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." In Bush, above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his pre-sentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court's decision in Bush, above, in OAG 88-14 the Attorney General affirmed the agency's denial of an inmate's access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a "special report" prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for pre-sentence investigation reports).
01-ORD-97, p. 4. In 01-ORD-97, this office upheld a decision by the Parole Board to withhold "contemporaneous handwritten notes" prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that such records "[fell] squarely within the parameters of the privilege established at KRS 439.510." 01-ORD-97, p. 4.
Because "any and all documents submitted by a Parole Officer . . . to board members for review" also fall within the parameters of KRS 439.510, the Parole Board correctly relied upon this privilege in denying Mr. Dean's request. On this issue, the analysis contained in 01-ORD-97 and 05-ORD-265 is equally controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In light of this determination, the remaining question is whether the Parole Board violated the Act relative to "an electronic record of its meetings" and "any and all documents submitted by a . . . Commonwealth's Attorney, to board members for review."
As the Parole Board correctly argued on appeal, this office has consistently recognized that a public agency cannot produce nonexistent records for inspection or copying. Rather, 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 as the Parole Board 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. 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 contains no evidence to refute 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. Having affirmatively indicated to Mr. Dean that no electronic recording exists and explained why, and further advised that no documents by the Commonwealth's Attorney were located in his file, the Parole Board ultimately discharged its duty under the Open Records Act. 05-ORD-109, p. 3; 02-ORD-144. Because Mr. Dean "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. To hold otherwise would result in the Parole Board "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 Parole Board's denial of Mr. Dean's request in accordance with
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), and prior decisions of this office such as 07-ORD-188. 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.
Michael Dean, # 178739Ashley SullivanAmy V. Barker
Footnotes
Footnotes
1 Any related issues are thus moot per 40 KAR 1:030, Section 6.
2 KRS 61.874(1) authorizes the Parole Board to require "advance payment of the prescribed fee [reasonable fee of ten cents per page], including postage where appropriate."
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). Our holding presumes that the Parole Board made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." Id. Ideally, the Parole Board should have also specifically identified the steps taken to identify and locate any correspondence from the Commonwealth's Attorney per the standard of 95-ORD-96.