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 Jesse Walker's May 16, 2011, request to inspect "the inspection form that was completed by the [D]orm 1 C/O on Cell C 110 C-Wing on the day I moved in that cell . . . between the month[s] of July-Aug[ust] 2010." According to Mr. Walker, the inspection form "is required to be done prior to a[n] inmate moving in." KSR Offender Information Specialist Marc Abelove indirectly asserted that no such record existed, advising Mr. Walker that he was "not required to create a document(s) and/or record(s) which do not already exist," and further observing that he spoke with "Unit-A's, CUA-II, Ms. Amy Robey who then had the Dorm-1 Officer look for the requested" form. Mr. Abelove noted that he was also informed that "cell inspections [sic] sheets from all 3 shifts are kept in a single file. " This appeal followed. Insofar as KSR cannot produce that which it does not have, nor is the agency required to "prove a negative" in order to refute a claim that a responsive form currently exists in the absence of a prima facie showing that such a form was actually created and still exists, the Attorney General has no basis upon which to find that KSR violated the Open Records Act; however, the inability of KSR to confirm whether the form was never created in this instance or inadvertently lost raises possible records management and retention issues which necessitate a referral to the Kentucky Department for Libraries and Archives, consistent with KRS 61.8715, for additional inquiry as that agency deems warranted. From an Open Records perspective, KSR subverted the intent of the Act in apparently failing to establish an effective system for ensuring proper management and retention of such records. See 10-ORD-130.
Upon receiving notification of Mr. Walker's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. 1 Ms. Barker explained:
KSR agrees that the form is something that is normally prepared when an inmate moves into and out of a cell where Mr. Walker was located. Staff who would normally be involved with preparation of the form were asked whether a form had been prepared in Mr. Walker's case. Given the lapse of time and the number of inmates with whom the staff are involved, the staff did not have a specific recollection of a form being prepared for Mr. Walker. Forms that are prepared are retained in a single file after an inmate moves out of the cell. A review of that file has not located the form. KSR cannot provide that it does not have. It was either not prepared or inadvertently lost. KSR has made reasonable efforts to locate a form for Mr. Walker, but has not located one. . . .
Citing prior decisions of this office, Ms. Barker argued in closing that a "public agency cannot afford a requester access to a record that it does not have or which does not exist" and it "discharges its duty under the Open Records Act by affirmatively so stating."
This office agrees that KSR is not required to produce nonexistent records for inspection or copying and that, by all indications, "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested" was apparently conducted. 2 05-ORD-109, p. 3. Although the agency's initial response was not a model of clarity, 3 KSR ultimately discharged its duty under the Act in affirmatively indicating that no such form currently exists; however, the uncertainty as to whether the form was never created or "inadvertently lost" creates a presumption of records mismanagement which KSR has not attempted to rebut.
With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records generally, the analysis contained in 07-ORD-188 and 07-ORD-190 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. 4 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 in affirmatively indicating that no such record(s) exists (or is in the possession of the agency) as KSR has twice asserted 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." 5 01-ORD-136, p. 2. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records. Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171. Pursuant to KRS 61.8715, the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8. In sum, "the key to records access is effective records management." Id., p. 10.
Given the statutorily recognized interrelationship between records management and records access, the instant appeal raises an issue regarding the records management practices of KSR insofar as it was unable to ascertain whether the requested form was never prepared or inadvertently lost. This office "is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." 94-ORD-121, p. 5. However, since July 15, 1994, when amendments to the Open Records Act took effect, this office has applied a higher standard of review to denials based upon the nonexistence of the record(s) being sought. In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. Although the record is devoid of any objective basis to suggest bad faith on the part of KSR, it has not offered any explanation for the possible loss or destruction of the form as required to rebut this presumption.
Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and KDLA with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530. Of particular significance, the Commission exercised this authority in creating the Department of Corrections Records Retention Schedule, a review of which does not reveal any specific reference to such records. Even assuming that cell inspection forms are unscheduled records, which KSR has not claimed, this appeal "presents the occasion for [the agency] to work with the [KDLA] to schedule these and other previously unscheduled records." 04-ORD-040, p. 5. See 94-ORD-121. Although KSR cannot produce that which it does not have, and is not required to "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), and prior decisions of this office applying the rule announced in that case, such as 07-ORD-188 and 07-ORD-190, the fact remains that unscheduled records must be "retained by the agency until a retention schedule is established for them." 04-ORD-040, p. 5; 08-ORD-138; 11-ORD-053. Accordingly, this office is obliged to refer the matter to KDLA in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted.
Although the Attorney General does not find, as a matter of law, that KSR violated the Open Records Act by failing to provide Mr. Walker with a copy of the form, this office does find that KSR subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records, "thereby frustrating the public's right of access." 10-ORD-130, p. 5. Ultimately, this office cannot afford Mr. Walker the relief that he seeks; the Attorney General is not empowered to declare the inability of KSR to produce a nonexistent record(s) a violation of the Open Records Act, in the absence of existing legal authority mandating the creation of such a record(s), or to compel KSR to maintain a certain type of record(s) for a specific period of time. Inasmuch as the latter prerogative resides with KDLA and the Archives and Records Commission, the Attorney General respectfully defers to those entities regarding the issues raised.
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:
Jesse WalkerMarc AbeloveAmy V. Barker
Footnotes
Footnotes
1 Ms. Barker confirmed that KSR actually received the request on May 20; accordingly, its May 25 response was issued within five business days per KRS 197.025(7).
2 "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). Here, KSR specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96. Compare 10-ORD-087.
3 See 09-ORD-145, pp. 4-7, for discussion regarding the duty of a public agency to specifically indicate whether a record(s) exists. This office has long recognized that the inability of a public agency to produce records is "tantamount to a . . . denial" and thus it is "incumbent on the [public agency] to so state in clear and direct terms." 01-ORD-38, p. 9 (citations omitted).
4 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.
5 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 02-ORD-89; 04-ORD-032. See also 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); 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal).