Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Luis A. Alkabala-Sanchez's January 31, 2012, request for "a copy of any records stating that I am or was a sex offender, which were used to make a determination in recommending me for the Sex Offender Treatment Program (SOTP) during my last two annual reclassifications. " Mr. Alkabala-Sanchez noted that he already had copies of his "reclass forms where they recommended for it, I want the records that caused them to recommend me." In a timely written response, EKCC Offender Information Specialist Sonya Wright advised him that "no public record maintained by [EKCC is] responsive to your request." Citing prior decisions of this office, Ms. Wright further observed that a public agency "cannot afford a requester access to a record that it does not have or which does not exist." Ms. Wright also explained that she had searched Mr. Alkabala-Sanchez's institutional file but did not find any record stating that Mr. Alkabala-Sanchez had been classified as a sex offender that would "have the need to complete SOTP." Ms. Wright also spoke to his caseworker, Eva Kash, "and she could not find anything to support this." With regard to Mr. Alkabala-Sanchez's assertion that a SOTP was recommended in his "last two annual reclassifications, " Ms. Wright advised that she had reviewed those forms "and neither shows you were recommended. "
On appeal, EKCC explained in greater detail how the reclassification form entries upon which Mr. Alkabala-Sanchez relied actually contradict his assumption that such records were created. Because EKCC advised Mr. Alkabala-Sanchez in a timely written response that no responsive document(s) exists in the custody or possession of the agency, following a "search using methods which [could] reasonably be expected to produce the record[s] requested," this office has no basis upon which to find that EKCC violated the Open Records Act in the absence of any irrefutable proof that EKCC actually created records matching the description provided. 05-ORD-109, p. 3. EKCC cannot produce that which it does not have nor is EKCC required to "prove a negative" under existing law. See 11-ORD-122.
Upon receiving notification of Mr. Alkabala-Sanchez's appeal from this office, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, supplemented the agency's response, in relevant part, as follows:
The requested records do not exist because nothing in the Kentucky Department of Corrections (DOC) system, either hard copy or in Kentucky Offender Management System (KOMS), indicates that Mr. Sanchez was recommended to the [SOTP]. Mr. Sanchez included two documents with his appeal to the Attorney General's Office that reference Sex Offender Counseling/SOTP and SOTP. "SOTP" appears in the "Comments" section on page two of a Reclassification Custody Form signed by Mr. Sanchez on January 20, 2012. That reference is partially blacked out and the initials EK [Eva Kash, Classification and Treatment Officer for Mr. Sanchez] appear beneath that reference. "Sex Offender Counseling/SOTP" appears in the "Programs Recommended" section on a Reclassification Custody Form dated January 19, 2011. That reference is marked out as well and the form was also signed by Mr. Sanchez. The copies of both Reclassification Custody Forms mentioned were submitted by Mr. Sanchez with his [Open Records Appeal], and both show that references to SOTP have been crossed out.
The references to SOTP on these forms were a result of human error. During the data entry process, an employee mistakenly entered incorrect information on the Reclassification Custody Forms of Mr. Sanchez. The SOTP references were marked out prior [to] the signed documents being scanned into KOMS, that crossing out invalidates the reference, therefore, those references will not affect Mr. Sanchez in the reclassification process.
Having acknowledged that public agencies must explain the nonexistence of records in dispute, "and make 'a good faith effort to conduct a search using methods which [could] reasonably expected to produce the record(s) requested," Ms. Keeton reiterated that EKCC searched Mr. Alkabala-Sanchez's institutional file but found no documents recommending that Mr. Sanchez attend SOTP. Ms. Wright consulted with his caseworker, Eva Kash, and her search for the requested documents was negative as well." Although Mr. Alkabala-Sanchez appears to "allege that he was recommended for SOTP during his 2011 and 2012 reclassifications, " EKCC continued, "the fact that references to SOTP on both forms were crossed out contradicts his allegations. After conducting a reasonable search of the institutional file and KOMS file regarding Luis A. Alkabala-Sanchez, # 197141, the agency concluded that the records requested by Mr. Sanchez are nonexistent. " EKCC has no records "reflecting that he was recommended for SOTP." The entries on the two reclassification forms were ultimately marked out, Ms. Keeton reiterated, were "the result of human error, " and "have not impacted the reclassification results regarding Mr. Sanchez."
Inasmuch as the search by EKCC included his institutional file(s) and his KOMS record, and Ms. Wright contacted his CTO who also checked the files, the search "involved members of the EKCC staff who would have knowledge of a SOTP recommendation for Mr. Sanchez" and was therefore reasonable in the agency's view. Because EKCC "conducted a reasonable search and concluded that the requested records do not exist," and then advised Mr. Alkabala-Sanchez of that fact in a timely written response, EKCC believes that it handled the request properly. We agree.
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. 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 just as DOC has repeatedly asserted here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 10-ORD-050. 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, 1 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 are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University). When, as in this case, a public agency denies that any responsive documents exist, and the record on appeal supports its position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to both Mr. Alkabala-Sanchez's request and his appeal, EKCC affirmatively indicated that no existing records in the custody or possession of the agency match the description provided, explaining the search conducted to locate potentially responsive documents. EKCC ultimately explained that entries found on the reclassification forms upon which Mr. Alkabala-Sanchez relied in support of his position resulted from human error and confirmed that no records in the custody or possession of the agency reflect that he was actually recommended for SOTP. The agency now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Alkabala-Sanchez's claim that records corresponding to his request exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme 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." 2 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 documents in the absence of a prima facie showing that 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; 08-ORD-189. Although Mr. Alkabala-Sanchez attempt to make such a showing here, the forms upon which he relied actually contradict his position rather than validate it as our independent review confirmed.
Because Mr. Alkabala-Sanchez "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 11-ORD-037 (denial of inmate's request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); see also 11-ORD-118. Compare 11-ORD-074 (recognizing that the "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"); 11-ORD-036.
EKCC cannot produce that which it does not have nor is EKCC required to "prove a negative." Because EKCC appears to have 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 record(s) was located and explaining why none would have been created. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. To hold otherwise would result in EKCC "essentially hav[ing] to prove a negative" in order to refute Mr. Alkabala-Sanchez's unsubstantiated claim that such a record(s) exists. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, or any proof that EKCC ever created a record(s) "used to make a determination in recommending [him] for the Sex Offender Treatment Program (SOTP)," this office affirms the agency's denial of his request in accordance with Bowling , above, and prior decisions of this office such as 11-ORD-014, 11-ORD-037, 11-ORD-122, and 11-ORD-091. See also 07-ORD-188; 07-ORD-190; 08-ORD-015; 11-ORD-058.
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:
Luis. A. Alkabala-SanchezSonya WrightLinda M. Keeton
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