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 State Reformatory violated the Kentucky Open Records Act in the disposition of William D. Woolum's October 15, 2010, request for any written reports from Warden Cookie Crews or various other KSR officials "involved in the investigation into illegal activities on the KSR Yard involving myself and possibly 3- [sic] other inmate's [sic], resulting [in] my being placed in administrative segregation on 10-7-2010," "any assaultive history reports, including statements by/from alleged victims," "any photographs or videotaped documentation of any alleged crime scenes of alleged victim(s)," "any lab results, medical, DNA, etc. of serious or otherwise assaults on staff, visitor[s] or inmate (s)," and "any corroborated witnessed [sic] statements, evidence, State Police reports, or anything beyond a single informant." Because no responsive documents existed at the time of Mr. Woolum's request, and KSR could not produce nonexistent documents for inspection or copying, the agency discharged its duty under the Act in affirmatively indicating as much to Mr. Woolum in a timely written response.
Marc Abelove, Offender Information Specialist, correctly advised Mr. Woolum that he was "not required to create document(s) and/or record(s) which do not already exist." Although Mr. Abelove also quoted the language of KRS 61.878(1)(h), without explanation, he ultimately reiterated to Mr. Woolum that a review of his institutional file did not reveal "any information in regards to your request at this time." Upon receiving notification of Mr. Woolum's appeal from this office, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, responded on behalf of KSR, 1 conceding that KSR's original response "under the circumstances and without providing further context," was "a bit cryptic." However, Mr. Milby continued, "as it indicates that Mr. Abelove reviewed the inmate's records and found no responsive documents, it is to that degree substantively and procedurally correct."
Citing 99-ORD-98, Mr. Milby correctly observed that a public agency "cannot afford a requester access to a record that it does not have or which does not exist." Further, a public agency "discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-043; 99-ORD-150." Mr. Milby then offered the following context:
Mr. Woolum's request for documentation pertains to an incident on the KSR yard that occurred on October 7, 2010. At that time, he was placed into administrative segregation pending the outcome of an Internal Affairs investigation into possible illegal activity. As of the time of his request and appeal, that Internal Affairs investigation continues. Any Internal Affairs documents are for obvious reasons held confidential until the completion of the relevant investigation(s), and are not available to inmates, [records custodians] or personnel outside Internal Affairs, or undersigned counsel. Should the investigation result in criminal or disciplinary charges against Mr. Woolum, his due process rights regarding those documents will attach. Additionally, the documents, to the extent they contain a [specific] reference to him as contemplated by KRS 197.025(2), may be made available via the Open Records Act to the extent required by the Act and subject to the exceptions therein, including those established by KRS 197.025, after the investigation is completed.
In closing, Mr. Milby explained that Mr. Abelove's response "did not specifically convey the above information regarding Internal Affairs documents, as the information that such an investigation was proceeding did not [sic] had not yet been made available to staff via records systems until October 28, after the response was issued." Instead, Mr. Milby advised, Mr. Abelove's response contemplated "that documents of the type and in the context requested by Mr. Woolum would be subject to [KRS 61.878(1)(h)], as no disciplinary action had yet been initiated." Insofar as KSR also correctly indicated that, "at the time of the request, a search of the available records revealed no responsive records, and that an agency is not required to create records that do not exist[,]" the agency's response, according to Mr. Milby, was "beyond what is required by the Open Records Act. " Based upon the following, this office concludes that although KSR's original response admittedly lacked context and specificity, the agency did minimally discharge its duty under the Act.
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. 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" when the request is made. 2 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(ed) as KSR has twice asserted in this case. The Attorney General has expressly so held on many occasions. However, this office 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 on appeal 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 advised Mr. Woolum that no responsive documents existed in the possession of the agency in a timely written response, KSR discharged its duty under the Open Records Act relative to his request. 3 05-ORD-109, p. 3; 02-ORD-144. To hold otherwise would result in KSR "essentially hav[ing] to prove a negative" in order to refute a claim that such records existed. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the agency's denial of Mr. Woolum'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. Assuming that KSR made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 4 as the record suggests, KSR 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.
William D. Woolum, # 079194Marc AbeloveJonathan S. Milby
Footnotes
Footnotes
1 Mr. Milby first noted that much of Mr. Woolum's argument "refers to constitutional interests," and correctly asserted that such questions are beyond our scope of review under KRS 61.880(2)(a); accordingly, this office declines to address the alleged violations of Mr. Woolum's constitutional rights.
2 In 94-ORD-52, the Attorney General observed:
This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management, or, in this instance, the purported failure of a public agency to generate a given record in a timely fashion. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the document in its possession at the time the request is submitted? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 93-ORD-51. The question of whether a document "should" exist is not cognizable under the Open Records Act.
Id., p. 3 (emphasis added); 93-ORD-55; 07-ORD-126; 08-ORD-265.
3 When determining whether a public agency has properly invoked KRS 61.878(1)(h), upon which Mr. Abelove prospectively relied, the Attorney General undergoes the analysis contained in, for a recent example, 10-ORD-075, a copy of which is attached hereto for the parties' reference in the event Mr. Woolum opts to submit a new request when the subject investigation is completed. Because KSR has confirmed that no responsive documents existed in the instant case, this office does not reach the secondary argument made by KSR.
4 "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, KSR should have also specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96.