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 partially denying Uriah M. Pasha's March 11, 2013, request for a copy of his receipts for all "Vendor Orders from July 15, 2010 through October 26, 2011; All Inmate Canteen Receipts showing his purchase[s] from 01/20/1999-6/30/1999[,] 08/23/2000-10/20/2000[,] 04/13/2001-08/06/2001[, and] July 15, 2010-10/25/2011." In his April 3, 2013, response, 1 KSR Offender Information Specialist William Mustage advised Mr. Pasha that "[p]er the Kentucky Department of Corrections Record Retention Schedule, effective 4/5/2011, as mentioned in Group # 0635 Series # 05542 as well as Group # 0635F Series # 05952, the document(s) that you have requested [] are to be destroyed after five (5) years of retention by this Agency and have been destroyed. " However, Mr. Mustage provided Mr. Pasha with 133 pages of documents responsive to his request for the receipts from vendor orders dated July 15, 2010, through October 26, 2011, and canteen receipts from July 15, 2010, through October 25, 2011, upon receipt of the copying fee and postage costs per KRS 61.874(1) and Corrections Policies and Procedures (CPP) 6.1. KSR cannot produce nonexistent records for inspection or copying and ultimately satisfied its burden of proof under KRS 61.880(2)(c) in explaining that other documents responsive to Mr. Pasha's request were properly destroyed in the normal course of business. Because a review of the Department of Corrections Records Retention Schedule validates the position of KSR regarding the applicable retention period for the records in dispute, this office affirms the agency's final disposition of Mr. Pasha's request.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker noted that she has reminded KSR staff "that the initial response letter should have contained the information about the records that no longer exist." Accordingly, this office will not belabor the point. Noting Mr. Pasha's mistaken belief that KSR was required to maintain the documents requested for a period of twenty (20) years, KSR correctly observed that both of the potentially applicable Records Series, namely 05542 (Inmate Account File) and 05952 (Inmate Inventory and Property Form), 2 actually mandate retention for a period of five (5) years prior to destruction. Citing prior decisions of this office, Ms. Barker reiterated that a public agency "cannot afford a requester access to a record that it does not have or which does not exist," nor is a public agency required to "prove a negative" in explaining the nonexistence of records being sought.
As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those 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, following a reasonable search, and explaining why as KSR ultimately did here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 12-ORD-056. 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. Rather, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records; this office is without authority to deviate from that statutory mandate.
That said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) when the General Assembly enacted KRS 61.8715 in 1994, 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 its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate. See
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" ); 12-ORD-195. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. 11-ORD-104, p. 5. Here, KSR ultimately explained that any responsive documents not already provided were properly destroyed in the normal course of business per the applicable Records Retention Schedule, a review of which confirms that any responsive documents from 1999, 2000, or 2001 were properly destroyed prior to Mr. Pasha's 2013 request; nothing more is required. When, as in this case, a public agency has denied that any responsive documents currently exist and fully explained why, and the unrefuted evidence presented confirms, rather than refutes that position, further inquiry is unwarranted. 05-ORD-065, pp. 8-9. The denial is affirmed. See 11-ORD-014.
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 M. Pasha, #William MustageAmy V. Barker
Footnotes
Footnotes
1 Mr. Mustage issued a timely written response per KRS 197.025(7) on March 19, 2013, advising Mr. Pasha that he located a total of 133 responsive documents and notifying him that upon receipt of a check or money order in the amount of $ 19.45 ($ 13.30 for copies and $ 6.16 for postage), KSR would mail the documents to him. KSR initially neglected to explain the basis for denying the remainder of the request as required to satisfy its burden of proof under KRS 61.880(1) and 61.880(2)(c), but remedied this error in the final response dated April 3, 2013. See 09-ORD-145, pp. 4-7, for discussion regarding the duty of a public agency to specifically indicate whether a record(s) exists. This office has long recognized that the inability of a public agency to produce records is "tantamount to a . . . denial" and thus it is "incumbent on the [public agency] to so state in clear and direct terms." 01-ORD-38, p. 9 (citations omitted).
2 Records Series 05542 "documents activity on each inmate's account, providing a back-up for each transaction. Inmate accounts are custodial accounts opened on behalf of inmates, but which are treated as bank accounts." On the other hand, Records Series 05952 "documents the state-issued property and the personal inventory of inmates in an institution pursuant to the Department of Corrections Policies and Procedures Manual, Policy Number 17.1." Upon further inquiry, this office learned from KSR that both were listed since Mr. Pasha requested "All Inmate Canteen Receipts," which might refer to consumable items and/or personal items, and the latter series would enable tracking of personal, i.e., not state-issued items.