Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Kentucky State Reformatory (Sex Offender Treatment Program) relative to Jeffery L. Carpenter's August 2011 requests violated the Kentucky Open Records Act. Mr. Carpenter admittedly did not retain a copy of his August 10, 2011, request, which KSR/SOTP has denied receiving, and therefore was unable to provide this office with a copy as required under KRS 61.880(2)(a); accordingly, this office declines to consider any issues related thereto per the mandatory language of this provision, as well as the corresponding regulation, 40 KAR 1:030, Section 1, and makes no finding as to whether KSR/SOTP failed to issue a timely response as Mr. Carpenter alleged. 1 Because KSR/SOTP cannot produce that which it does not have, and ultimately agreed, in a timely written response, 2 to provide Mr. Carpenter with a copy of the only existing record it possesses (the Comprehensive Sex Offender Presentence Evaluation) which is responsive to the August 17 request it did receive, upon receipt of payment 3 and with certain authorized redactions, the Attorney General affirms the agency's final disposition of that request.
Mr. Carpenter initiated this appeal by letter dated August 29, 2011, "because this agency has failed to respond within the time limit requirement of the Open Records Act. " Because inmates do not receive "Open Records Forms in duplicate copies," Mr. Carpenter explained, he submitted a second request to Dr. Van Nort on August 17. Attached to Mr. Carpenter's appeal was a copy of a handwritten request (on notebook paper) of that date for "[a]ll evaluations Assessments [sic] made at [Eastern Kentucky Correctional Complex] by Tiffany F. Lindsey on August 9, 2010 concerning any Comprehensive Sex Offender Presentence Evaluation; any Psychological or Psychiatric Assessments and Evidence of all prior sex crimes, allegations, charges or convictions used in any evaluation or Risk Assessments ." (Original Emphasis.)
Upon receiving notification of Mr. Carpenter's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR/SOTP, initially advising that KSR/SOTP did not receive Mr. Carpenter's August 10 request, and correctly noting that a public agency "cannot respond to a request that it does not receive." 4 Ms. Barker then correctly noted that KRS 61.880(2)(a) and 40 KAR 1:030, Section 1, prohibit this office from considering the August 10 request given that Mr. Carpenter failed to provide a copy of the request on appeal. See note 1, above.
With regard to Mr. Carpenter's August 17 request, Ms. Barker advised that Dr. Van Nort did not receive a copy of the handwritten request Mr. Carpenter attached to his appeal; however, KSR/SOTP did receive a different request on a standard request form of the same date, which "has some overlap with the" other August 17 request purportedly sent to Dr. Van Nort. 5 Attached to Ms. Barker's September 8 response was a copy of the August 17 request form 6 that Dr. Van Nort actually received, a copy of his August 25 response to same, and a copy of his September 8 response to the handwritten August 17 request attached to Mr. Carpenter's appeal. She advised that Mr. Carpenter will be provided with the only existing responsive document(s) upon receipt of payment, as explained in Dr. Van Nort's August 25 letter, and noted that Dr. Van Nort "explained that he does not have the other requested records" but provided "what information he could to help" Mr. Carpenter locate the records (consistent with KRS 61.872(4)). Citing prior decisions by this office, in closing Ms. Barker correctly asserted that a "public agency cannot afford a requester access to a record that it does not have or which does not exist," and generally "discharges its duty under the Open Records Act by affirmatively so stating."
In his August 25 response to Mr. Carpenter, Dr. Van Nort advised that his Comprehensive Sex Offender Presentence Evaluation consisted of eight (8) pages, agreeing to provide him with a copy upon receipt of payment in the amount of $ 2.08 (8 pages x 10 [cents] per page = 80 [cents] + $ 1.28 in postage costs). Dr. Van Nort indicated that information obtained by the probation and parole officer in the exercise of his duties had been redacted per KRS 439.510, 8 incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 9 and that (unspecified) personal information had been redacted per KRS 61.878(1)(a). 10
7
By letter directed to Mr. Carpenter on September 8, 2011, Dr. Van Nort advised that KSR/SOTP had not received the handwritten request dated August 17 that was attached to his appeal until he received the notification sent by this office. Nevertheless, Dr. Van Nort further advised Mr. Carpenter that he does "not possess any records you request made by Tiffany Lindsey." If Ms. Lindsey worked at EKCC, Dr. Van Nort suggested, "you may contact the open records coordinator at EKCC for these records. Since you reside at EKCC, you will have the necessary address for the institution." 11 Dr. Van Nort explained that he is "not familiar with Ms. Lindsey" and thus he does "not have any information concerning documents she made if they are not located at EKCC." He referred Mr. Carpenter to his August 25 response for the necessary information regarding his Comprehensive Sex Offender Presentence Evaluation. In closing, Dr. Van Nort advised that he does "not possess any separate psychological or psychiatric assessments or evidence for other evaluations or assessments" nor does he "have any information about these records." Accordingly, Dr. Van Nort was unable to direct Mr. Carpenter to where he may locate them, but suggested that he "might try the facility where you believe they were done."
By letter dated September 22, 2011, Ms. Barker supplemented the agency's response, initially advising that Dr. Van Nort has not received payment for the record(s) described in his August 25 response to Mr. Carpenter, nor did Mr. Carpenter have sufficient funds in his inmate account on September 21, 2011, to pay for the record(s). Ms. Barker then provided additional information to clarify Dr. Van Nort's August 25 response. Specifically, Ms. Barker advised that Dr. Van Nort invoked KRS 61.878(1)(a) "in reference to victim information that would be redacted if payment is received for the records at a later date. . . . The Department of Corrections does not release victim information to offenders under this exception in an effort to protect the privacy of victims." 12 Dr. Van Nort asserted KRS 439.510 for excerpts of information contained in the PSI that was obtained by a probation and parole officer in the exercise of his duties because that information is privileged. Ms. Barker advised that KRS 17.574(2) "continues the confidentiality of this information." 13 If payment is received for the responsive record(s) at a later date, KSR/SOTP will not redact preliminary recommendations and opinions per KRS 61.878(1)(j) on this occasion. See note 9, above. Because KSR/SOTP has agreed to provide Mr. Carpenter with a copy of the only existing record it possesses which is responsive to his August 2011 request(s), with appropriate redactions, upon receipt of the copying fee and postage, this office finds no error in the agency's ultimate disposition of his request(s).
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 KSR/SOTP 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, 14 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.
Having denied that any documents responsive to either of the August 17 requests exist in the possession of the agency except for the Comprehensive Sexual Offender Presentence Investigation, which it has agreed to release, KSR/SOTP now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Carpenter's claim that additional responsive documents 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." n15 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 11-ORD-147 (Jeffery L. Carpenter/EKCC); see also 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189.
However, 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. Carpenter has not cited any persuasive authority in support of his position that KSR/SOTP must possess records responsive to his request for any evaluations, assessments, profiles, etc. beyond the CSOPE, let alone any such documents created by a Tiffany F. Lindsey at EKCC. 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; rather, the agency's explanation for the nonexistence of additional records is entirely credible. Because Mr. Carpenter "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).
In the absence of the requisite prima facie showing, or any evidence to suggest that additional records were created or maintained at KSR/SOTP that would be responsive to Mr. Carpenter's August 17 request(s) in this case, the agency's final disposition of that request(s) is affirmed in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-188, 07-ORD-190, and 11-ORD-074. To hold otherwise would result in KSR/SOTP "essentially hav[ing] to prove a negative" in order to refute Mr. Carpenter's unsupported claim that such 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:
Jeffery L. Carpenter, ## 95017Amy V. BarkerDr. James J. Van Nort
Footnotes
Footnotes
1 In relevant part, KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request.
(Emphasis added.) These documents comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. See 04-ORD-022; 09-ORD-082. As KSR/SOTP correctly observed on appeal, 40 KAR 1:030, Section 1, in relevant part, expressly prohibits the Attorney General from considering a complaint "that fails to conform to KRS 61.880(2)[.]"
2 KSR/SOTP received the request on August 22, 2011, as evidenced by the stamp on the copy it provided in responding to Mr. Carpenter's appeal (which differs in part from the handwritten copy attached to Mr. Carpenter's appeal). Dr. James J. Van Nort, Psy.D. Assistant Director, Division of Mental Health, responded within five business days per KRS 197.025(7), on August 25, 2011.
3 This policy is consistent with KRS 61.874(1) and Department of Corrections Policies and Procedures (CPP) 6.1. See 11-ORD-047.
4 This office has regularly acknowledged that it cannot generally resolve a factual issue concerning delivery and receipt of a request. See 03-ORD-061; 04-ORD-036; 08-ORD-172; 10-ORD-230. As in these decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Carpenter's request(s) for this office to conclusively resolve the related factual dispute. Absent objective proof to the contrary, however, this office does not have any reason to question the veracity of Dr. Van Nort or KSR staff, and therefore finds no violation, particularly given the failure of Mr. Carpenter to provide a copy of his August 10 request for verification.
5 To the extent Mr. Carpenter failed to provide a copy of the August 17 request form with his appeal, KSR/SOTP was not obligated to address it on the merits;however, because the agency, to its credit, did so in the interest ofefficiency, and, in any event, cannot produce that which it does not have, thisoffice will address both August 17 requests here as well in the interest ofefficiency.
6 On this form, Mr. Carpenter asked to inspect all documents "with respect toall evaluations, assessments, Comprehensive Sex Offender PresentenceEvaluations, any Psychological and/or Psychiatric profiles, criminal history ofpast sex crimes, charges, allegations used as evidence in evaluations pursuantto KRS 197.410(2)(a)(b) and 17.554(2) [sic] evidence used as basis of anydetermination under these chapters." (Original emphasis.)
In 11-ORD-147 (Carpenter/EKCC, issued September 16, 2011), Ms. Barker advised, in explaining the nonexistence of "any/all evidence used pursuant to KRS 197.410(2)(a) . . . , " that "[n]othing 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. " According to Ms. Barker, 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." (Emphasis added.)
8 Among those records removed from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
9 Among those records excluded from application of the Open Records Act absent a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). Although Dr. Van Nort further advised that preliminary recommendations and opinions contained in the record were redacted on the basis of KRS 61.878(1)(j), without further explanation, KSR/SOTP later waived this exception; accordingly, this office makes no finding with regard to whether such information could have been properly withheld.
10 This fact explains, and somewhat mitigates Dr. Van Nort's failure to comply with KRS 61.872(4) by providing the "name and location of the official custodian of the agency's public records. "
7 KRS 439.510 provides:
All information obtained in the discharge of official duty by any probation and parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board or cabinet.
See 08-ORD-136, pp. 4-6 (affirming denial of request for "parole risk assessments" on the basis of KRS 439.510); 99-ORD-14; 00-ORD-221; 01-ORD-97; 05-ORD-035. The agency's reliance on this provision is validated by existing legal authority.
11 This office has rejected blanket policies of withholding categories of information relative to suspects, witnesses or victims from law enforcement records (different in kind from a presentence evaluation) on the basis of KRS 61.878(1)(a), holding in 04-ORD-188, for example, that "a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure." However, a narrow exception has been recognized for victims of sexual offenses identified at KRS Chapter 510, which applies here. See 02-ORD-36, the reasoning of which the courts later adopted in Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2004); see also 09-ORD-086. Because this existing legal authority is dispositive on the facts presented, further discussion of this question is unwarranted. Mr. Carpenter has not challenged the agency's limited reliance on KRS 61.878(1)(a) nor would such a claim succeed.
12 KRS 17.574(2) provides that "[a]ll confidential records provided pursuant to this section shall remain confidential, unless otherwise ordered by a court or by another person duly authorized to release the information."
13 See KRS 61.8715.
14 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."