Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky Correctional Complex ("EKCC") violated the Kentucky Open Records Act in its disposition of inmate Jeffery Carpenter's August 15, 2011, request for a copy of "Any/All Evidence used pursuant to KRS 197.410(2)(a) that may have been used in a determination under section (2)(a) showing that I demonstrated evidence of a mental, emotional, or behavioral disorder, but not active psychosis or mental retardation/ when considered to be an ' eligible sexual offender '" (emphasis in original). We conclude that the actions of EKCC were substantively in accordance with the Act.
On August 18, 2011, Sonya Wright, Offender Information Specialist at EKCC, responded as follows:
Your first [ sic ] request is denied. The Department may deny a request for, "any and all" because it is not couched in sufficiently specific terms to permit the records custodian to determine what record(s) the request encompasses and whether those records are exempt from disclosure. ? There is no public record maintained by the Department of Corrections responsive to your request. A public agency cannot afford a requester access to a record that it does not have or which does not exist. ? The agency discharges its duty under the Open Records Act by affirmatively so stating.
(Citations omitted.)
Mr. Carpenter's appeal was received by this office on August 23, 2011. In his letter of appeal, he states as follows:
1. My request is specific as to the evidence that is used pursuant to KRS 197.410(2)(a) that may have been used by the DOC in making a determination under section (2)(a) of that statute showing that I demonstrated evidence of a Mental, Emotional, or Behavioral Disorder when the DOC considered me to be an Eligible Sexual Offender pursuant to this chapter.
2. The Department of Corrections is mandated by this statute to prove by evidence that I demonstrated, a Mental, Emotional, or Behavioral Disorder before determining that I am an "Eligible Sexual Offender" who is likely to benefit from the SOTP program.
(Emphasis in original.) KRS 197.400 et seq. establishes a specialized treatment program for sexual offenders. Pursuant to KRS 197.410(2), a sexual offender becomes "eligible" for the program:
when the sentencing court or [D]epartment [of Corrections] officials, or both, determine that the offender:
(a) Has demonstrated evidence of a mental, emotional, or behavioral disorder, but not active psychosis or mental retardation; and
(b) Is likely to benefit from the program.
The agency's response to this appeal, dated September 2, 2011, was submitted by Amy V. Barker, Assistant General Counsel, Department of Corrections. She states in part:
EKCC staff made a search at EKCC for the records being requested even though it was not clear exactly what Mr. Carpenter was seeking. EKCC does not have a sex offender treatment program and believed that the records being sought would be maintained by the SOTP if they existed. A review of records for Mr. Carpenter indicated that he had not sought to begin sex offender treatment, so the reviewer believed that no records existed. The reviewer was not aware that if the inmate had a sex offender risk assessment, then records responsive to the request would be maintained by the sex offender risk assessment unit. Counsel has been informed that the records at EKCC do not show whether an inmate has had a sex offender risk assessment. EKCC should have stated that the records being sought did not exist at EKCC, but that if he had a risk assessment that the records may be maintained at the SORA Unit at the Kentucky State Reformatory ["KSR"].
Ms. Barker indicates that Mr. Carpenter should be able to obtain the records he needs from KSR and that he has already made a request to KSR for the records.
With regard to EKCC, consistently with the original response on August 18, Ms. Barker asserts that the facility possessed no records responsive to Mr. Carpenter's request. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record) . As Ms. Barker points out:
Nothing in KRS 197.410(2)(a) requires EKCC to maintain the records sought by Mr. Carpenter and nothing in the statute requires the DOC to generate a formal document concerning whether an inmate is an eligible sexual offender. The sexually offending behavior of the crime is sufficient to show a behavior disorder mentioned in the statute. Records may be generated in the SOTP when treatment is applied for or treatment begun that may be responsive to Mr. Carpenter's request. He has not done either of these at this time.
If Mr. Carpenter wishes to be considered for a SOTP, it is our understanding that he is free to apply for treatment, which might result in the generation of records containing the information he seeks. For purposes of the present appeal, we conclude that EKCC did not substantively violate the Open Records Act.
Ms. Barker acknowledges that pursuant to KRS 61.872(4) Sonya Wright, in her original response, should have notified Mr. Carpenter that records might exist in the SORA unit at KSR. In this instance, we consider the procedural violation to be mitigated by the fact that Ms. Wright was unaware that such records might exist at another facility, and essentially mooted by the fact that Mr. Carpenter also requested the records in question from KSR himself.
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 proceedings.
Distributed to:
Jeffery Carpenter, # 95017Amy V. Barker, Esq.Sonya Wright