Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex violated the Kentucky Open Records Act in the disposition of Uriah Pasha's February 15, 2013, request for a copy of "the Disciplinary Report Part II Form and Adjustment Hearing [audio] recording of Category 3-12 from February 1, 2007 for Uriah Pasha # 092028." Having allegedly received no response to his request, Mr. Pasha initiated this appeal by letter dated March 12, 2013, implicitly asserting that LSCC violated KRS 197.025(7) in failing to issue a written response within five business days of receiving the request. Upon receiving notification of his appeal, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of LSCC. Ms. Keeton advised that LSCC staff reviewed the request attached to Mr. Pasha's appeal before conducting a search of the Open Records Request Log maintained there as each request is "date stamped and logged in upon arrival at LSCC." Because LSCC staff was unable to locate any record of receiving the request, LSCC maintained that it was not received. The Attorney General cannot resolve factual disputes concerning the actual delivery and receipt of a request; however, absent objective proof to the contrary, this office does not have any reason to question the veracity of either LSCC or Ms. Keeton, and therefore finds no violation in this regard. In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2,) and this office is without authority to deviate from that statutory mandate. See OAG 89-81; 03-ORD-061; 08-ORD-172; 11-ORD-209. Notwithstanding this factual dispute, LSCC addressed the merits of Mr. Pasha's request in responding to his appeal. Because LSCC is not required to honor a duplicative request nor is the agency required to produce a nonexistent record, this office affirms the agency's ultimate disposition of the request in accordance with existing legal authority.
LSCC advised that on January 6, 2012, Mr. Pasha was provided a copy of a Disciplinary Report Form -- Part II for a Category 3, Item 12 violation dated February 1, 2007, in response to a request dated December 28, 2011. Ms. Keeton provided this office with a copy of the December 28, 2011, request and the agency's January 6, 2012, response with her March 21, 2013, letter as verification. She correctly asserted that a public agency is not required to provide duplicative copies of a record; rather, the Attorney General has recognized that a public agency is not required to satisfy identical requests. "Unless a requester can explain why it is necessary for a public agency to produce more than one copy of records previously requested and received," she concluded, there is no requirement under the Open Records Act that a public agency honor a duplicative request. Accordingly, LSCC maintained that even if the agency had actually received Mr. Pasha's February 15, 2013, request, Mr. Pasha failed "to provide sufficient justification why the institution should provide him an additional copy of a record that clearly is, or should be, in his possession. See also 95-ORD-47; 13-ORD-021."
This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198, a copy of which is attached hereto and incorporated by reference. Here, as in 11-ORD-209, for example, Mr. Pasha has not offered any such justification; accordingly, LSCC properly declined to satisfy his request for a copy of the February 1, 2007, Disciplinary Report Form and the remaining question is whether LSCC erred in denying his request for the specified audio recording. Based upon the following, this office finds no error by LSCC.
In addressing this aspect of Mr. Pasha's appeal, LSCC explained that "[r]ecordings of disciplinary hearings are retained for two (2) years, and then destroyed pursuant to the Department of Corrections Records Retention Schedule. . . . A recording of a disciplinary hearing held in 2007 would have been destroyed in 2009; therefore, the agency no longer has a copy of the recording requested." Citing prior decisions by this office, LSCC correctly asserted that a public agency cannot produce a nonexistent record for inspection or copying nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists.
The Attorney General has long recognized that a public agency cannot provide a requester access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection attaches only if the record(s) being sought is "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 in affirmatively indicating that no such record(s) exists (or is in the possession of the agency) as LSCC ultimately asserted here. It is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-136, p. 2. As previously indicated, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records.
That said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) in dispute in 1994 when the General Assembly enacted KRS 61.8715, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." 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 record(s) at a minimum. See 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); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). For example, the agency "must identify steps taken to locate missing records or explain under what authority the records were destroyed. " 08-ORD-015, p. 4. Loss or destruction of a public record(s) creates a rebuttable presumption of records mismanagement. 11-ORD-104, p. 5.
Here, LSCC has explained the reason for the nonexistence of the requested audio recording. Ms. Keeton ultimately advised on its behalf that said recording was properly destroyed in the normal course of business two years after the disciplinary case was closed in accordance with retention and disposition instructions for Records Series No. 05522, Prison Disciplinary Hearing File - Recording, on the DOC Retention Schedule. Accordingly, LSCC has rebutted the presumption of records mismanagement and satisfied its burden of explaining the nonexistence of the recording per KRS 61.880(2)(c).
Having reviewed the record on appeal, including the relevant section of the applicable records retention schedule(s) attached to Ms. Keeton's response, this office has no basis upon which to find that LSCC committed a substantive violation of the Act. Whatever inferences Mr. Pasha may draw from the nonexistence of the record, the agency's response to his request was consistent with the provisions of the Act insofar as it cannot make a nonexistent record available for inspection or copying and the subject recording was destroyed in the normal course of business per applicable records retention schedule requirements. Having affirmatively indicated to Mr. Pasha in writing that the requested audio recording no longer exists, and offered a credible explanation for the nonexistence of said record, LSCC cannot be said to have violated the Act in denying the request. See 07-ORD-190 (holding that a public agency cannot be required to "prove a negative" under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005)); 11-ORD-037 (denial of Mr. Pasha'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 agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 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.
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:
Uriah Pasha, # 092028Beth HarperLinda M. Keeton