Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the inaction of the Perry County Jailer in relation to Wayne C. Murphy's January 4, 2011, request to the "Perry County Jail" for "a copy of the 'Arrest Records' and the Jail records of incarceration of" two named individuals violated the Kentucky Open Records Act. Having received no response of any kind to his request, Mr. Murphy initiated this appeal by letter dated January 26, 2011. This office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Perry County Attorney John C. Shackelford and Jailer Jeanette Hughes on February 1, 2011, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal" but any response "must be received no later than Monday, February 7, 2011." By letter dated February 21, 2011, Mr. Shackelford belatedly advised this office that Jailer Hughes "acknowledges receipt of the open records request from Mr. Murphy dated January 3, 2011, and acknowledges that her written response was not sent during the time period set forth in KRS 61.880(1)." Accordingly, this office finds that Jailer Hughes violated KRS 61.880(1) in failing to issue a timely response, and ultimately failed to comply with KRS 61.872(4); however, she did not commit a substantive violation of the Act inasmuch as a public agency cannot produce that which it does not have.
As a public agency, the Jailer must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) In construing the mandatory language of this provision, the Kentucky Court of Appeals observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond, as the Jailer admittedly did here, constitutes a violation of the Act.
As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5. Mr. Shackelford noted in his response that Jailer Hughes now "understands the procedural requirements of the Open Records Act and will, in the future, respond within the statutory timeframe." Accordingly, this office will not belabor the issue any further.
In his February 21 letter, Mr. Shackelford also clarified that Perry County does not operate a county jail. Perry County prisoners, he explained, "are housed at the Kentucky River Regional Jail in Hazard, Kentucky. The Perry County Jailer, Jeanette Hughes, does not have in her possession any records of the [KRRJ]." In closing, Mr. Shackelford provided the address for the KRRJ and indicated that any requests should be addressed to Jail Administrator Tim Kilburn. 1 Attached to Mr. Shackelford's response was a copy of Jailer Hughes' February 10, 2011, response to Mr. Murphy. Jailer Hughes similarly advised Mr. Murphy that "[t]he requested information is not in my possession." Perry County does not have a county jail. Perry County prisoners are housed at the Kentucky River Regional Jail in Hazard. Any records concerning Perry [C]ounty inmates should be addressed to the Kentucky River Regional Jail." With the exceptions of the noted violation of KRS 61.880(1), and the failure to fully comply with KRS 61.872(4) in her February 10 response, the Jailer's ultimate disposition of Mr. Murphy's request cannot be said to have violated the Act.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. The right to inspect 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; 04-ORD-205. 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 Jailer ultimately asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 2 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that currently exist and that are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 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 responsive documents exist, and provides a credible reason for the lack of responsive documents, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In belatedly responding to Ms. Murphy's request/appeal, the Jailer/County Attorney affirmatively indicated that no documents existed which matched the description provided. The Jailer also explained why but finds herself in the position of having to "prove a negative" in order to conclusively refute Mr. Murphy's claim that such records exist in her custody. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 3 In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Mr. Murphy has not attempted to make such a showing here; accordingly, Jailer Hughes cannot be said to have committed a substantive violation of the Act in the ultimate disposition of his request. The analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference. To hold otherwise would result in the Jailer "essentially hav[ing] to prove a negative" to refute a claim that such records exist in her possession. 07-ORD-190, p. 7.
Because the Jailer apparently "does not have custody or control" of any records identified in Mr. Murphy's request, the Jailer "shall notify [Mr. Murphy] and shall furnish the name and location of the official custodian of the agency's public records. " KRS 61.872(4). Jailer Hughes partially complied with KRS 61.872(4) in her February 10 response but it was deficient insofar as she did not also provide Mr. Murphy with the address of the official custodian for KRRJ; however, assuming that Mr. Shackelford sent a copy of his response to Mr. Murphy he now has that address notwithstanding this error and may wish to proceed by submitting a request to KRJJ.
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 It is unclear from the record on appeal whether Mr. Shackelford forwarded a copy of his response to Mr. Murphy per the instructions on the Notification to Agency of Receipt of Open Records Appeal dated February 1, 2011.
2 See KRS 61.8715.
3 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."