Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Juan Sanders-El's September 3, 2011, request for a "copy of all incoming legal mail lists from July 2007 to Dec[ember] 2009" documenting his receipt of mail from specific individuals with the last names of Cunningham or Jackson and his September 8, 2011, 1 request for a "disc copy" of all "recorded phone calls" made by him using a specific area code and/or specific telephone numbers. In separate timely responses, KSR Offender Information Specialist Marc Abelove denied each request, advising respectively that he reviewed the incoming mail logs for the specified time frame during which Mr. Sanders-El received fifteen (15) pieces of mail "but none had listed the names of Cunningham or Jackson as the sender," and that "[p]hone records are created and maintained for the purpose of institutional security" and thus may be withheld pursuant to KRS 197.025(1) as the Office of the Attorney General has recognized in prior decisions, including 07-ORD-182. In responding to Mr. Sanders-El's September 23, 2011, appeal(s), Staff Attorney Alea Amber Arnett, Justice and Public Safety Cabinet, elaborated upon the position of KSR, correctly observing that Mr. Abelove's response briefly summarizing his efforts to locate any responsive mail logs (or "lists") and ultimately advising that none were found was adequate. Citing Kentucky Corrections Policies and Procedures (CPP) 16.3 II.C, 2 and quoting from 07-ORD-182 (upholding denial of request for "inmate phone records and telephone logs" on basis of KRS 197.025(1)), Ms. Arnett further affirmed the agency's position that disclosure of "recorded phone calls would constitute a threat to the security of the institution by providing a means by which inmates could learn which phone calls are monitored. " Because governing precedents validate both of the arguments made by KSR, its denial of each request is affirmed.
With regard to "inmate phone records, and telephone logs, " KRS 197.025(1) authorizes KSR to deny access. 3 Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of certain records would constitute a threat to the security of the inmate requester, any other inmate, the correctional staff, the institution, or any other person, this office has declined to substitute its judgment for that of correctional facilities or the Department of Corrections; the instant appeal presents no reason to depart from this approach. Just as the Louisville Metro Department of Corrections justified its reliance on KRS 197.025(1) in denying access to inmate telephone records and logs in 07-ORD-182 (copy enclosed), KSR satisfied its burden of proof under KRS 61.880(2)(c) here, and is therefore entitled to withhold the records on the basis of KRS 197.025(1). In our view, the analysis contained at pp. 6-7 of 10-ORD-005, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. The remaining question is whether Louisville Metro properly denied Mr. Sanders-El's request for the specified inmate mail logs (or "lists").
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. 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 KSR has twice asserted here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5. See 07-ORD-188; 07-ORD-190. 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, 4 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 on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. On this issue, the analysis contained at pp. 7-10 of 10-ORD-005 is controlling.
In a series of decisions issued since Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), this office has affirmed public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that the documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 11-ORD-074. Mr. Sanders-El has not made such a showing nor is there any evidence to refute KSR's position that no existing mail logs for the specified time frame contain entries responsive to his request. Because KSR 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, in affirmatively indicating that no such records were located. 05-ORD-109, p. 3; 11-ORD-003. Accordingly, this office affirms the agency's disposition of Mr. Sanders-El's request in accordance with Bowling , above, and prior decisions of this office such as 10-ORD-005; see also 07-ORD-188 and 07-ORD-190; 11-ORD-081; 11-ORD-091.
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:
Juan Sanders-El, # 131019Alea Amber ArnettMarc Abelove
Footnotes
Footnotes
1 KSR was entitled to withhold any mail logs, or portions thereof which did not contain a specific reference to Mr. Sanders-El per KRS 197.025(2), but would have been required to "separate the excepted and make the nonexcepted material available for examination" per KRS 61.878(4). See 07-ORD-182 (holding that agency was entitled to withhold any responsive visitors' logs, or portions thereof which did not contain a "specific reference" to inmate requester but was required to provide him with access to remainder).
2 In relevant part, CPP 16.3 provides that "[a]n inmate telephone call may be monitored on a random basis or if there is reason to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution, employees, or other inmates. "
3 KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are removed from application of the Open Records Act in the absence of a court order.
4 See KRS 61.8715.