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 denying Jason Brown's request for two "(2) copies of Sgnt. [sic] Walthours hand written [sic] incident report from 4/29 @ aprox. [sic] 8:00 a.m. in relation to cell search in D-1 D-15 and (2) copies of incident report [sic] in KOM's to this incident on 4/29 @ aprox. [sic] 8:00 a.m.," or "all hand written [sic] reports or statements in log entrys [sic] by all correctional officers involved in this incident." KSR Offender Information Specialist Marc Abelove promptly denied Mr. Brown's request on the basis that he is "not required to create a document(s) and/or record(s) which [does] not already exist" and there are "no 'handwritten' incident reports by staff involved in this incident." Arguing that a handwritten report has to exist because "all disciplinary reports are type[d] by a secretary based on the reporting CO's/Staff's report of the incident and that the reporting party does not type the incident report that is used in the administrative process dealing with the violation," Mr. Brown subsequently initiated this appeal. In the absence of a prima facie showing that such a report(s) still exists, or any evidence to refute the agency's position as further articulated on appeal for that matter, this office affirms the denial of Mr. Brown's request per Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). Mr. Brown has not cited, nor is the Attorney General aware of, any legal authority requiring KSR to create or maintain such records from which their existence "can be presumed. " 11-ORD-74, pp. 3-4.
Upon receiving notification of Mr. Brown's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, elaborated upon the agency's position as follows:
At KSR, the reporting staff person provides the allegations for the disciplinary report to another staff person who types the disciplinary report. After the disciplinary report is typed, the reporting staff person reviews and signs the disciplinary report. The signed disciplinary report is the official document for the disciplinary action and the initial info given to be typed into the disciplinary report is often not retained since it is no longer needed. Counsel has been informed that it was not retained for this disciplinary action. Counsel has also been informed that other staff persons may provide handwritten reports on some occasions that may be used as part of the disciplinary process, but no other staff handwritten reports were made or used in this particular instance.
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.
(Emphasis added.) Based upon the foregoing, KSR asked this office to find that it did not violate the Open Records Act.
As KSR correctly observed in response to Mr. Brown's appeal, a public agency cannot afford a requester access to nonexistent records or those which 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. " KRS 61.870(2); 02-ORD-120, p. 10. Thus, 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 affirmatively indicating that no such records exist as KSR has twice asserted in this case. On many 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, 1 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; however, the Attorney General 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 at a minimum. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 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). When, as in this case, a public agency denies that any such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to Mr. Brown's request KSR did not provide any explanation for the nonexistence of the report(s) as required to satisfy its burden of proof under KRS 61.880(2)(c); however, Ms. Barker affirmatively indicated on appeal that no records exist matching the description provided after consulting with KSR staff regarding its general practice and the facts of this particular case. 2 Now KSR finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Brown's claim that such records exist. The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling, above, at 341. Addressing this dilemma, in Bowling the 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 Id. 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 records in the absence of a prima facie showing that records 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. Brown has not made such a showing here.
This office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." Mr. Brown has not cited any such authority in support of his argument. In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. Although no such authority has been cited or independently located here, KSR nevertheless adequately explained the nonexistence of the handwritten report(s). Because Mr. Brown "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4.
The analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Because KSR appears to have made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, by affirmatively indicating that no records were located, and providing a plausible explanation for the absence of such records. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. To hold otherwise would result in KSR "essentially hav[ing] to prove a negative" in order to refute Mr. Brown's unsupported claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, or any evidence to suggest that such records were maintained in this case, the agency's denial of Mr. Brown's request is affirmed in accordance with Bowling, above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190.
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: Jason Brown, # 151540Marc AbeloveAmy V. Barker
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