Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in denying Craig A. Cagle's September 17, 2010, request for "any victim impact statements, letters, e-mails, etc. sent to the Parole Board in opposition or protest of my parole on July 21, 2010." KSP initially relied upon KRS 61.878(1)(a) as the basis for denial, but in response to Mr. Cagle's October 7, 2010, appeal, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, also invoked KRS 61.878(1)(i) and (j) on behalf of KSP, arguing that such materials "are clearly 'correspondence with private individuals'" within the meaning of the former exception as well as "documents providing recommendations which do not 'give notice of final action of [a] public agency' " within the meaning of the latter. Unable to resolve the question presented without more information, this office invoked KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, specifically asking Mr. Milby to provide us with a copy of the records for in camera review, elaborate upon the assertion that disclosure of the records would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a), and "explain whether the documents requested were adopted as part of the basis for the agency's final action" so this office could make a determination regarding whether KRS 61.878(1)(a), (i) and/or (j) were properly invoked. On November 5, 2010, Mr. Milby advised the undersigned counsel via e-mail that further investigation had revealed "[t]here are no victim impact statements or letters in opposition or protest to Mr. Cagle's parole. " Although KSP is not required to produce nonexistent records, nor is KSP expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), the inability of KSP to produce the requested correspondence due to its apparent nonexistence is "tantamount to a denial and . . . it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. Insofar as KSP initially failed to affirmatively indicate that no responsive documents existed, KSP failed to fully discharge its duty under the Act.
In the agency's final response, Mr. Milby further advised that he "reviewed Mr. Cagle's Parole Board file, to which KSP personnel had only limited access," though KSP personnel "were in fact likely unaware that their access was limited." Having confirmed that no responsive documents existed in the file, Mr. Milby noted that the only similar documentation found therein was "letters of support by friends and family members of Mr. Cagle, which were not requested, and other documents compiled by the Board and its staff, which were also not requested." Mr. Milby acknowledged that if "KSP had been aware of the existence of further documents not in their possession, then they should have referred Mr. Cagle to the appropriate custodian [per KRS 61.872(4)]. However, as it turns out that no responsive documents exist, the result would have been the same." Thus, while KSP "might concede that there were possible procedural violations," the agency maintains "that no substantive violations occurred."
This office has long recognized that a public agency cannot produce nonexistent records for inspection or copying; rather, the right of inspection attaches only after the record is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In defining the statutory obligations that a public agency has when denying access to public records, however, the Attorney General has also consistently held that "it is incumbent on the agency to so state in clear and direct terms" and that "a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (citations omitted). Assuming that a public agency has made a "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" which KSP ultimately did here, it cannot be said to have violated the Act in failing to produce nonexistent records. 07-ORD-023, p. 8 (citation omitted). If the agency has affirmatively indicated that no responsive documents exist, as in this case, nothing else is required in the absence of a prima facie showing to the contrary under Bowling, supra, and prior decisions by this office, such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the agency having to essentially "prove a negative" in order to refute a claim that certain records exist. Here, KSP violated KRS 61.880(1) in failing to initially advise Mr. Cagle whether the requested correspondence existed.
With regard to what is required of a public agency under the circumstances presented, the analysis contained in 09-ORD-019 is controlling; a copy of that decision is attached hereto and incorporated by reference. In short, when a record for which inspection is being sought does not exist, "the agency should specifically so indicate." OAG 90-26, p. 4. Accordingly, this office concludes that while KSP obviously cannot produce for inspection or copying that which it does not have or which does not exist, inasmuch as KSP failed to affirmatively indicate as much to Mr. Cagle, its original response was procedurally deficient. The agency's ultimate disposition of Mr. Cagle's request is affirmed.
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.
Craig Cagle, # 95603 GL15Angela ThomasJonathan S. Milby