Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Governor violated the Kentucky Open Records Act in the disposition of James Harrison's June 1, 2011, request for "additional records to determine by what authority does the Parole Board have to review capital sentences pursuant to KRS 532.030," and similar June 25, 2011, request "to obtain any records, documents and/or other tangible correspondence, acts, or regulations that [have] been created to implement probation and parole as provided for in KRS 532.030." Mr. Harrison "assume[s] that [the Office of the Governor] is the appropriate agency head based upon [KRS] 439.310, which states in pertinent part, 'The commissioner, with the approval of the secretary and the Governor, shall appoint a person charged with the administration of probation and parole laws, [. . .]'" 1 and further "assume[s] that there has [sic] to be some rules, regulations, records, acts, or otherwise some existing documentation concerning the implementation of probation and parole created in reference to KRS 532.030, which states, in pertinent part, . . . 'without benefit of probation and parole until the minimum of twenty-five (25) years.'" 2 The Office of the Governor cannot produce nonexistent records for inspection or copying, nor is the Office of the Governor obligated, under existing case law, to "prove a negative" in order to refute Mr. Harrison's unsupported claim that such records actually exist. Because Mr. Harrison "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.
Upon receiving notification of Mr. Harrison's July 25, 2011, appeal, Deputy General Counsel Michael T. Alexander responded on behalf of the Office of the Governor. Mr. Alexander initially advised that he responded to the first of Mr. Harrison's two June 1 letters, received on June 6, by letter dated June 10, at which point he provided Mr. Harrison "with a copy of all records in our possession which related to him and further advised that there were no additional records in the Office [of] the Governor responsive to his request." Mr. Alexander further explained that Mr. Harrison's second letter of June 1 was addressed to Governor Beshear and was "forwarded to the Kentucky Parole Board, which submitted a response to Mr. Harrison on June 16, 2011." A copy of the Parole Board's response was enclosed with Mr. Alexander's August 2 response to Mr. Harrison's appeal. 3 Citing 02-ORD-231, the Office of the Governor then observed that "both letters from Mr. Harrison dated June 1, 2011, are essentially requests for information as opposed to requests for specifically described public records, " and "it is well settled that a public agency is not obligated to honor a request for information[.]" 4 Notwithstanding Mr. Harrison's "beliefs to the contrary," Mr. Alexander reiterated, "there are no records in the Office of the Governor responsive to his requests dated June 1, 2011." 5
Because the Office of the Governor affirmatively indicated to Mr. Harrison that no responsive documents exist, and forwarded his request(s) to the (presumably) appropriate public agency, 6 this office finds no error in the agency's disposition of his request(s) in the absence of any objective proof that such documents actually exist. Mr. Harrison has not cited any statute, regulation or case law that actually requires creation or maintenance of such records by the Office of the Governor. 7 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, nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
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. 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. 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 by affirmatively indicating that no such records exist as the Office of the Governor has repeatedly asserted here. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98.
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, 8 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.
The Office of the Governor now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Harrison's claim that such records exist. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). 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." Id. 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." 9 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. Harrison failed to make 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. Harrison has not cited any persuasive 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. No such authority has been cited or independently located here. Because Mr. Harrison "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; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption).
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. In the absence of the requisite prima facie showing, or any evidence to suggest that such records were created or maintained in this case, the agency's denial of Mr. Harrison's request is affirmed in accordance with Bowling, above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the Office of the Governor "essentially hav[ing] to prove a negative" in order to refute Mr. Harrison's unsupported claim that such records exist. 07-ORD-190, p. 7. See 11-ORD-068 (Denial by DOC of request by Mr. Harrison for any records "referring to my sentence 'in the term or terms of 'possibility'" or any documenting "changes [to] the language of KRS 532.030 " upheld as DOC was not required to "prove a negative" and no requirement exists for such records to be created nor would any documents changing the relevant language of the statute exist as the 1998 amendment to KRS 532.030 did not alter the language that applies to him).
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 HarrisonMichael T. Alexander
Footnotes
Footnotes
1 In relevant part,KRS 439.310, "Administration of probation and parole laws," provides:
The commissioner, with the approval of the secretary and the Governor, shall appoint a person charged with administration of probation and parole laws, who, with the approval of the commissioner, shall appoint a number of probation and parole officers and other employees sufficient to administer the provisions of KRS 439.250 to 439.560; but no employee shall be appointed except in the manner hereinafter provided. . . .
As the statutory language quoted above illustrates, the Governor's involvement under KRS 439.310 consists of approving, with the Commissioner of the Justice and Public Safety Cabinet, a person, selected by the Commissioner of the Department of Corrections, to administer the probation and parole laws; accordingly, Mr. Harrison's assumption is incorrect. The Governor "shall appoint a Parole Board . . ." under KRS 439.320. See KRS 439.330 regarding the duties of the Board. Nothing in this chapter of the Kentucky Revised Statutes suggests that the Governor is required to create or maintain records concerning implementation of KRS 532.030.
2 Mr. Harrison asserted on appeal, in relation to his June 25 and July 19 requests, that he presumes "as does the law, that a properly addressed envelope with sufficient postage reaches its des[tination]." He subsequently clarified that in originally asserting that his June 1 also went unanswered, he meant unanswered "in the [sense that he] never received what records" he requested. In reply, the Office of the Governor explains that it has "no record whatsoever in our possession indicating receipt of the [June 25 and July 19] requests. This fact is confirmed by our CC6 Intake Tracking System. In any event, and as previously noted, there are no records in the Office of the Governor responsive to the open records requests dates June 25 and July 19, 2011."
As in 03-ORD-061, 05-ORD-013, and 08-ORD-150, to name a few, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of the subject requests for this office to conclusively resolve the related procedural issue. See also 10-ORD-109. It stands to reason that a public agency such as the Office of the Governor cannot respond to a request(s) which it does not receive, and the limited evidence presented on this issue does not establish that it actually received Mr. Harrison's June 25 and July 19 requests. See 03-ORD-052. Absent objective proof to validate Mr. Harrison's position, this office cannot determine that the Office of the Governor violated the Act from a procedural standpoint by failing to issue a written response within three business days per KRS 61.880(1). Inasmuch as Mr. Harrison essentially requested the same information/records on each occasion, and the agency has affirmatively indicated that no responsive documents exist, our substantive analysis is unaffected.
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3 In his June 16 response, Verman Ray Winburn, Chair of the Kentucky Parole Board, advised Mr. Harrison that he is "currently serving a life sentence (86CR055) with the possibility of parole after 25 years. On March 15, 2011, you met the Parole Board and you were subsequently given a 60 month deferment. The Parole Board gave you the reasons for their decision at your parole hearing[.]" Nevertheless, Mr. Winburn enclosed a copy of the decision for his review. Mr. Winburn further advised Mr. Harrison that after reviewing his request for reconsideration, the Board "found no basis to grant a new hearing." Accordingly, the its decision "remains as ordered[.]"
4 This assertion is correct as far as it goes; however, Mr. Harrison specifically requested "any records, documents and/or other tangible correspondence, acts, or regulations . . ." This office has long recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. However, public agencies must generally, in the alternative, provide access to existing records which "might yield the information sought." 97-ORD-6, p. 5. Because Mr. Harrison is precluded from exercising his right of inspection due to his incarceration, and no potentially responsive records exist, in any event, further discussion is unwarranted.
5 Mr. Alexander characterized the June 25 and July 19 requests, which the Office of the Governor apparently did not receive (see note 2), in this manner as well. As previously indicated, the subject matter of the requests is nearly identical and the same analysis therefore applies.
6 Pursuant to KRS 61.872(4), "[i]f 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. " Although the Office of the Governor apparently failed to notify Mr. Harrison that his request was being forwarded to the Kentucky Parole Board, as required to achieve full compliance with KRS 61.872(4), it acted in a manner consistent with the underlying purpose of this provision by promptly forwarding his request to the appropriate public agency for processing.
7 To the extent Mr. Harrison essentially asked the Office of the Governor to perform legal research on his behalf, it had no statutory obligation to do so. The Attorney General has construed the definition of "public record" codified at KRS 61.870(2) to exclude reference materials, including statutes, administrative regulations, and case law. Although such materials might qualify as "public records" due to being "in the possession of or retained by a public agency, " this office nevertheless concluded that such materials "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act [.]" 99-ORD-35, p. 4; 08-ORD-114. Similarly, this office has consistently recognized that a public agency is "not obligated to conduct general research in response to an open records request." 00-ORD-176, p. 2. See 00-ORD-130 (agency was not obligated to conduct legal research "by locating relevant statutes and regulations pertaining to the subject of the request"). In 00-ORD-176, a copy of which is attached hereto and incorporated by reference, this office reaffirmed the reasoning contained in 00-ORD-130. See also 09-ORD-211; 10-ORD-109.
8 See KRS 61.8715.
9 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."