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 Penitentiary violated the Kentucky Open Records Act in denying Uriah Pasha's December 5, 2010, request for a copy of the videotape recording "of the January 7, 2000, incident in which Uriah Pasha 92028 attacked Judge Bill Cunningham in Lyon County Circuit [Courtroom] II in the basement of Kentucky State Penitentiary and was charged with Category 7-4." In a timely written response, Deputy Warden Alan Brown, Institutional Open Records Coordinator, advised Mr. Pasha that said video recording "is no longer maintained at the Kentucky State Penitentiary as the incident occurred over 10 years ago[.]" Citing KRS 61.872(5) and 93-ORD-134, Mr. Brown explained that KSP could not provide Mr. Pasha with access to a nonexistent record(s) and was discharging its duty under the Open Records Act in affirmatively indicating that no such record currently exists. Because KSP apparently destroyed the requested video recording in accordance with applicable records retention schedules, which Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, explained on behalf of KSP in response to Mr. Pasha's appeal, this office affirms the agency's denial of his request as KSP cannot produce that which it does not have.
In his December 20, 2010, letter of appeal, Mr. Pasha argued that KSP is "required to maintain said record for 20 years." Mr. Pasha relied upon 06-ORD-109 in support of this assertion; however, the records to which Mr. Pasha sought access in that instance, relating to his completion of a treatment program in the Kentucky State Reformatory Correctional Psychiatric Treatment Unit, fell within the parameters of Records Series No. 04065 of the Department of Corrections Records Retention Schedule, "Inmate Medical File," which has a retention period of twenty (20) years. In short, 06-ORD-109 has no application here as the record at issue does not fall within that records series. Mr. Pasha also noted that he "was convicted of a disciplinary report" based on the video recording at issue "and was sentenced to 8 years [of] non-restorable Good Time Loss due to this record."
Upon receiving notification of Mr. Pasha's appeal from this office, Ms. Barker, in relevant part, advised:
The date of the videotape requested by Mr. Pasha is January 7, 2000. If it is assumed for the sake of argument only that the videotape was made part of the disciplinary record, a review of the [records retention] schedule indicates that disciplinary records need only be maintained for two years after the disciplinary case is closed. (DOC series 05522) 1 The disciplinary decision indicates that it relied on the staff statement rather than the tape. (Attached as exh. 1) The retention schedule requires surveillance tapes of public areas to be maintained for thirty days. (General Govt. series M0052) 2 Since the attack occurred in the courtroom at the [KSP], the area would be considered a public area though somewhat different from other buildings since access is necessarily limited in general to KSP. The tape is not the type of record that is made part of an inmate's institutional file, so it is not required to be maintained under the retention schedule for that series. The twenty year retention mentioned in 06-ORD-109 pertained to the medical file and has no application in this appeal.
A search was made and [KSP] no longer maintains a copy of the tape. A public agency cannot afford a requester access to a record that it does not have. 99-ORD-98; 09-ORD-129. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150; 04-ORD-043; 09-ORD-088.
Based upon the foregoing, Ms. Barker argued that KSP's denial must be affirmed.
With regard to statutory obligations of a public agency upon receipt of request for nonexistent records generally, the analysis contained in 07-ORD-188 is controlling; a copy of that decision is attached hereto and incorporated by reference. As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 3 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection attaches only if the record(s) being sought is "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 record(s) exists (or is in the possession of the agency) as KSP asserted in a timely manner here. It is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 4 01-ORD-136, p. 2. As previously indicated, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records.
That being said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." 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 record(s) 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). For example, the agency "must identify steps taken to locate missing records or explain under what authority the records were destroyed. " 08-ORD-015, p. 4.
Although KSP initially failed to provide any explanation for the nonexistence of the requested video recording, Ms. Barker ultimately advised on its behalf that even assuming the recording was made a part of the disciplinary record, it still would have been properly destroyed in the normal course of business two years after the disciplinary case was closed in accordance with retention and disposition instructions for Records Series No. 05522, Prison Disciplinary Hearing File - Recording, on the DOC Retention Schedule. Likewise, a review of Records Series No. M0052, Surveillance Video/ Audio Recordings, on the General Schedule for State Agencies, which seems to govern here, confirms that any such recording was properly destroyed thirty (30) days later. In either case, the assertion that KSP destroyed the January 7, 2000, video recording prior to December 5, 2010, the date of Mr. Pasha's request, is entirely credible.
Having reviewed the record on appeal, including the attachments to Ms. Barker's response (Disciplinary Report Forms Parts I and II), which validate her assertion regarding the apparent basis for the disciplinary action taken as a result of the incident on January 7, 2000, and reviewed the applicable records retention schedule(s), the Attorney General has no basis upon which to find that KSP committed a substantive violation of the Act. Whatever inferences Mr. Pasha may draw from the nonexistence of the record, the agency's response to his request was consistent with the provisions of the Act insofar as it cannot make a nonexistent record available for inspection or copying and the subject recording was destroyed in the normal course of business in compliance with applicable records retention schedule requirements. Having affirmatively indicated to Mr. Pasha in writing that the requested video recording no longer exists, and offered a credible explanation for the nonexistence of said record, KSP cannot be said to have violated the Act in denying the request assuming that it made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested." 5 05-ORD-109, p. 3. See 07-ORD-190 (adopting 07-ORD-188 and holding that a public agency cannot be required to "prove a negative" under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005)).
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.
Footnotes
Footnotes
1 This refers to Records Series No. 05522, entitled Prison Disciplinary Hearing File - Recording, found in the Justice and Public Safety Cabinet, Department of Corrections Records Retention Schedule, the Retention and Disposition instructions for which are to "Retain in agency for two (2) years after case closure; destroy. " These recordings are "of Prison Disciplinary Hearings conducted pursuant to 501 KAR 6:020 Corrections Policy & Procedure (CPP) 15.6."
2 This refers to Records Series No. M0052, entitled Surveillance Video/ Audio Recordings, found in the General Schedule for State Agencies, the Retention and Disposition instructions for which are to "Destroy or re-use after thirty (30) days if no investigation or litigation is taking place or pending." It documents "the activities in public areas of state government facilities."
3 As the Attorney General has also consistently emphasized, the Open Records Act does not empower this office to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
4 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-ORD-032; 02-ORD-89. 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal).
5 "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).