Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in these consolidated appeals is whether the Kentucky Parole Board and/or the Department of Corrections (DOC), Offender Information Services (OIS) violated the Kentucky Open Records Act in the disposition of two related but separate March 29, 2011, requests 1 by James Harrison for various records essentially relating to his prison sentence and eligibility for parole. Although DOC inadvertently failed to respond in a timely manner, the agency has acknowledged this violation of KRS 197.025(7) on appeal thereby rendering discussion of this procedural issue unnecessary. 2 With the exception of this admitted violation by DOC, both agencies ultimately complied with relevant provisions of the Open Records Act relative to Mr. Harrison's March 29 requests.
By letter dated April 6, 2011, Marian Young, Internal Policy Analyst II, responded to Mr. Harrison's request on behalf of the Parole Board. Ms. Young advised that she was returning Mr. Harrison's check in the amount of $ 10.00 to him due to her inability to process his request. According to Ms. Young, the Kentucky Parole Board "only maintains the audio recordings of parole hearings. The processing fee for audio recordings is $ 2.00 per copy." Ms. Young further explained that if Mr. Harrison wished to receive a copy of the recording of his March 15, 2011, parole hearing that he would need to resubmit his request, "along with the required processing fee, check or money order, payable to the Kentucky State Treasurer." In closing, Ms. Young advised him to "direct all open records requests regarding particular documents or the sentencing court documents pertaining to your sentence, to the keeper of those records, the office of Offender Information Services, P.O. Box 2400, Frankfort, KY, 40602-2400." As previously indicated, Mr. Harrison did not receive a written response from DOC. He initiated these appeals from the partial denial by the Parole Board and the inaction of DOC by separate, but nearly identical letters dated April 12, 2011, arguing that he is "only attempting to obtain records that pertain to me and [to] which that agency has referred and claim [sic] they have as recently as March 22, 2011, by Kentucky Parole Board Chair, Verman R. Winburn." Mr. Harrison attached the letter "in which he refers to serving a prison sentence of life without the possibility of parole for a minimum of twenty-five (25) years." Based upon the following, this office affirms the agencies' final disposition(s) of his requests.
Upon receiving notification of Mr. Harrison's appeals from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of both agencies. Ms. Barker initially acknowledged that a review of the OIS records confirmed that it "had inadvertently not responded to the request[.]" OIS "has a process in place for responding to requests in a timely manner, she continued, "but mistakes occasionally occur." Ms. Barker included a copy of the agency's April 25, 2011, response to Mr. Harrison with her written response of the same date. Ms. Barker further observed that Mr. Harrison "has an ongoing series of correspondence, administrative appeals, and open records requests with a number of entities within the DOC and the Parole Board concerning his sentence, " KRS 532.030 (governs allowable sentences) , and "his interpretation that he should automatically be given parole after he serve[s] twenty-five years of his sentence. " In sum, he appears to challenge the "phrase 'life without the possibility of parole' being used to refer to his sentence versus the language of the statute that uses the phrase 'life without the benefit of probation or parole. '"
Ms. Barker thoroughly explained the position of DOC as follows:
Mr. Harrison's open records request had four parts. The first part of the request sought records containing quoted language Mr. Harrison provided concerning life without the possibility of parole. [OIS] did not locate any records with the quoted language, but did locate several documents with similar language that contained the word "possibility" involving his sentence. Counsel has been informed that the quoted language is not language that would normally be used by the DOC in the standard records that it creates so there is no requirement for records with the quoted language to exist in the offender information file for Mr. Harrison. A public agency cannot afford a requester access to a record that it does not have or which does not exist. 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-43; 09-ORD-088. The located documents include letters from Mr. Harrison (of which he may not really want additional copies) and Court of Appeals opinions that he should have received in the past. It was explained to Mr. Harrison how to pay for these pages of records if he wants them. KRS 61.874(1) provides that a records custodian may require advance payment of fees for copying, and if applicable, postage. Mr. Harrison sent a check from another person with the request, but [it] was not made payable to the correct party and was for more than the records will cost. The check was returned with the response and it has been explained to Mr. Harrison how to pay for those records.
The second part of the request concerned records that change the language of the statute, KRS 532.030. No documents changing the language of the statute exist. Mr. Harrison's sentence was entered on November 5, 1986 and a review of KRS 532.030 indicates that [it] was amended in 1998, but did not change the language that is at issue for Mr. Harrison. There is no reason for the type of record requested to exist in Mr. Harrison's offender records. [Ms. Barker then reiterated the discussion above regarding nonexistent records.]
The third part of the request concerned a letter and response that were located and copies of which were provided to Mr. Harrison in the response.
The fourth part of the request concerned documents mailed to the Parole Board. The DOC does not mail documents to the Parole Board concerning hearings. The documents cannot exist if the DOC does not mail anything. No letters from outside parties that were mailed to the Parole Board were located in the file. [Ms. Barker reiterated the discussion above regarding nonexistent records.] While the DOC does not believe the letters are responsive to the request, it did locate letters from Mr. Harrison to Verman Winburn concerning the decision made by the Parole Board and has offered to provide the cost for the letters, if Mr. Harrison wants additional copies of his letters.
In addressing Mr. Harrison's request to the Parole Board, Ms. Barker summarized the agency's original response and explained that his check was returned for the same reasons noted above. Citing KRS 61.874(1), 3 Ms. Barker advised that the Parole Board will provide the tape when the correct payment is received. Ms. Barker also explained that DOC "maintains records for the Parole Board other than the recordings of its meetings or hearings." She further noted that the Parole Board provided Mr. Harrison with the custodian and location of the records he was requesting per KRS 61.872(4). 4 "Neither the Parole Board, nor the DOC," Ms. Barker correctly asserted, "is required to provide records prior to the payment of the cost of the records. Payment is not sufficient when a check in the incorrect amount made payable to the incorrect person is sent with the request." In closing, Ms. Barker again conceded the procedural violation by DOC but asserted that neither the Parole Board nor DOC committed a substantive violation of the Act. Having reviewed the record on appeal, this office agrees that neither agency's final disposition of the requests violated the Act.
The Attorney General has consistently recognized that 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. Rather, 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, in the absence of any objective proof to the contrary, in affirmatively indicating that certain records do not exist. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. DOC ultimately did so here with regard to all but item 3 of the request directed to OIS; 5 likewise, the Parole Board agreed to provide Mr. Harrison with a copy of the only existing record it has custody or control of upon his compliance with KRS 61.874(1) and notified him per KRS 61.872(4) that any other potentially responsive documents are maintained at DOC. Additionally, DOC has properly agreed to provide Mr. Harrison with copies of the only existing records which are even potentially responsive to items 1 and 4 of his request upon his compliance with KRS 61.874(1). Nothing more is required. 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, 6 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 custody 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 each of these cases, a public agency denies that any responsive documents exist and has provided a credible reason why, further inquiry is not warranted. 05-ORD-065, pp. 8-9. 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.
In responding to Mr. Harrison's appeal (and belatedly to his request as well), DOC affirmatively indicated that no documents existed which matched the descriptions provided. DOC also explained why the records were never created. The Parole Board notified Mr. Harrison that any records potentially responsive to his other written request, with the exception of the audio recording it properly agreed to provide upon receipt of payment, are maintained at DOC. The agencies now find themselves in the position of having to "prove a negative" in order to conclusively refute Mr. Harrison's unsupported claim that certain records exist in their possession. 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." 7 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 records being sought did, in fact, exist in the custody or control of the agency. The analysis contained in 07-ORD-188 and 07-ORD-190, for example, is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See also 06-ORD-042; 08-ORD-189. This appeal presents no reason to depart from the foregoing line of authorities.
Because DOC and the Parole Board appear to have made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," with regard to records which might have existed (as opposed to having never been created), they complied with the Act, regardless of whether their searches yielded any results, in affirmatively indicating that no additional records were located, providing a credible explanation for the absence of such records and/or complying with KRS 61.872(4) when appropriate in each case. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38. To hold otherwise would result in the agencies "essentially hav[ing] to prove a negative" to refute a claim that additional records exist. 07-ORD-190, p. 7.
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. Distributed to:
James Harrison, # 095435Amy V. BarkerMelissa HarrodMarian YoungVerman R. Winburn
Footnotes
Footnotes
1 Mr. Harrison requested the following records from the Parole Board:
(1) A copy of the document(s) referred to by Warden R. Winburn, Chair, in his March 22, 2011, letter to me referring to my sentence as "Life without the possibility of parole for a minimum of twenty-five (25) years for the 1986 murder";
(2) Any other document(s) referring to my sentence as "possibility" that has been issued by the Madison Circuit Court and Offenders [sic] Records Services;
(3) A copy of any documents that authorizes [sic] a sentence of without the possibility of parole for a minimum of 25 years; and,
(4) A copy of the parole hearing tape of March 15, 2011, approximate time 1:30 to 2:35 p.m. of [u]ndersigned.
Mr. Harrison requested the following records from DOC:
(1) A copy of any record(s), documentation, or Order(s) which referred to my sentence from the Madison Circuit Court or which otherwise exist that has recorded and/or documented my sentence as "life without the possibility of parole for twenty-five (25) years[, to] include any other documentation referring to my sentence in the term or terms of "possibility";
(2) Any such documents that authorize the sentence referred to above that changes the language of KRS 532.030[,] "Life without the benefit of probation or parole for a minimum of twenty-five (25) years";
(3) A copy of the letter mailed to John Hall in late January or early February 2011 and any disposition taken concerning that letter;
(4) A copy of the document(s) mailed to the [P]arole [B]oard concerning a hearing to be held in March 2011.
2 KRS 197.025(7) provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
3 In relevant part, KRS 61.874(1) provides that "when copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." Both agencies were authorized to require advance payment of the correct amount made payable to the correct party.
4 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
OIS has now apparently received a request following the Parole Board's response to this effect.
5 Any issues related to item 3 were rendered moot upon release of the documents requested. See 40 KAR 1:030, Section 6.
6 See KRS 61.8715.
7 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."