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 Western Kentucky Correctional Complex violated the Kentucky Open Records Act in denying Charon T. Anderson's multiple requests during the month of April 2013 for a copy of her "approval" for the Intensive Outpatient Program (IOP) dated March 9, 2012. 1 In a memorandum dated May 1, 2013, Deputy Warden DeEdra Hart advised Ms. Anderson that "[t]here is no written approval for any inmate regarding IOP. Basically, applications to the Substance Abuse Program (SAP) are reviewed by SAP personnel and a determination is made as to whether the inmate is suitable for IOP." If the inmate is deemed suitable for IOP, she continued, "a notation is made in the Kentucky Offender Management System stating such. However, there is no written approval stating whether an inmate is approved for IOP which is why you were unable to obtain a copy via an open records request."
Ms. Anderson subsequently initiated this appeal "regarding a deleted document out of the KOMS[], that Ms. Nancy Carstens, CTO at WKCC [possessed] a copy of before the documentation was deleted. " 2 WKCC is not required to produce a nonexistent record for inspection or copying nor is the agency required to "prove a negative" in order to refute Ms. Anderson's unsubstantiated claim that a responsive IOP approval exists. Because WKCC satisfied its burden of proof under KRS 61.880(2)(c) in ultimately providing a credible explanation for the nonexistence of the record in dispute, this office has no basis upon which to find that WKCC violated the Open Records Act in the absence of any facts or law from which its existence can be presumed. 3
Upon receiving notification of Ms. Anderson's appeal from this office, Linda M. Keeton, Assistant Counsel, Justice and Public Safety Cabinet, responded on behalf of WKCC, quoting the relevant portion of Deputy Warden Hart's May 1, 2013, memorandum and explaining that a "thorough search of [Ms.] Anderson's file at WKCC and on KOMS, failed to locate a copy of the document described, or a document resembling that description. Therefore, the agency does not possess a copy of the requested record or that record does not exist." Citing prior decisions of the Attorney General, Ms. Keeton correctly noted that a public agency cannot provide a requester with access "to a record that it does not have or which does not exist. . . . [and] discharges its duty under the [Act] by affirmatively so stating. . . . An agency is not required to 'prove a negative' when explaining that it does not have a record or that the record does not exist." (Citations omitted.)
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040; 13-ORD-024. 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 certain records do not exist following a reasonable search as WKCC ultimately asserted here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 13-ORD-024.
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 disputes arising under the Open Records Act are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record (s), and, if so, whether the record(s) 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. See 00-ORD-120. Having denied that a responsive IOP approval exists, and explained why after conducting a reasonable search, WKCC now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that such a record exists. 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 a public agency might 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." Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005).
Addressing this dilemma, 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." 5 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 public records in the absence of a prima facie showing that such records did, in fact, exist in the possession of the agency. See, e.g., 07-ORD-188; 08-ORD-189; 11-ORD-209; 12-ORD-012. 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. " 11-ORD-074, p. 3. 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. The Kentucky Court of Appeals approved this position recently in Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), declaring that when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence. "
No legal authority has been cited here nor does the record on appeal contain any irrefutable proof that a responsive IOP approval was ever created or currently exists in the possession of WKCC. See 12-ORD-065 (appellant reasonably assumed that a "resignation letter" existed in light of statement by public official in a public forum but failed to make a prima facie showing that such a record existed, relying instead on what could "generally be described as conjecture or assumption which, however logical, does not constitute proof"). In sum, this office does not have "a sufficient basis on which to dispute [WKCC's] representation that no such record[] exist[s]." 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); 11-ORD-081; 12-ORD-110. Compare 11-ORD-074 ("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"). WKCC has provided a credible written explanation for the record's nonexistence. Thus, in the absence of the requisite prima facie showing, this office must affirm the disposition of Ms. Anderson's request in accordance with existing legal authority. 6
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:
Charon T. Anderson, # 177122DeEdra HartLinda M. Keeton
Footnotes
Footnotes