Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Kentucky Open Records Act in denying Byron Bradford's July 12, 2013, request for the "Word document created by Kristy Mullins between 8-11-10 and 9-11-10 with the name Byron Bradford. To see the provider. " LLCC received Mr. Bradford's request on July 19 and Health Services Manager Kristy Mullins issued a timely written response on July 22, 2013, advising that "No such document exists. Provider schedules are shredded on a daily basis." By letter dated August 6, 2013, Mr. Bradford initiated this appeal. He argued that "it is impossible to determine whether 'No such document exists' because my name was never placed on a provider list, or because the list which contained my name was destroyed the same day it was created." According to Mr. Bradford, the agency's "failure to ensure adequate handling practices with regard to this document prevents any accountability with regard to the treatment progression of the serious medical need I possessed during the relevant timeperiod [sic]."
Upon receiving notification of Mr. Bradford's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LLCC. Ms. Barker explained that the "document requested is simply a schedule for the provider of patients to be seen on a particular day. Schedules or calendars are essentially preliminary notes that may or may not happen, but allow an office or individual an orderly way of operating." If a patient is actually seen by the provider, Ms. Barker advised, "a note of that encounter is maintained in the inmate's electronic medical record. The requested schedule is exempt from release pursuant to KRS 61.878(1)(i) and (j).
Courier Journal v. Jones, 895 S.W.2d 6, 8 (Ky. App. 1995); 05-ORD-018." She further noted that any references to other inmates being seen by a medical provider would also be protected under KRS 61.878(1)(a) "for reasons of personal privacy."
Relying upon OAG 78-626 (holding that Mayor of Louisville's appointment calendar was exempt) , as quoted in Courier v. Jones (holding that Governor's appointment schedule was "nothing more than a draft of what may or may never take place" and was intended "for inter or intra office use" until finalized as it represented one of the many "tools which a public employee or officer use[d] in hammering out official action within the function of his office"), LLCC argued that "this type of record may be destroyed at will" and the "records for the period requested were not retained." A public agency "cannot afford a requester access to a record that it does not have or which does not exist," Ms. Barker correctly observed, and the agency "discharges its duty under the Open Records Act by affirmatively so stating." Citing 11-ORD-209, she further noted that a public agency is "not required to 'prove a negative' when explaining that it does not have a record or that it does not exist." For these reasons, LLCC asserted that its denial of Mr. Bradford's request did not violate the Open Records Act. Because LLCC cannot produce a nonexistent record for inspection or copying, and the record in dispute falls within the parameters of Records Series M0018, Informational and Reference Material, found on the General Schedule for State Agencies , the Disposition Instructions for which provide to "[d]estroy when no longer needed, " this office has no basis upon which to find that LLCC violated the Open Records Act in destroying the record "at will."
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, and the Attorney General has applied a high standard of review to denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, 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. 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, nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1.
In responding to both Mr. Bradford's request and his appeal, the agency denied that any responsive record currently exists. LLCC now finds itself in the position of having to "prove a negative" in order to conclusively establish that such a record not only should exist, but actually still does. Addressing this dilemma, in Bowling at 340-341, the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that a record(s) is nonexistent] , he or she must make a prima facie showing that such records do exist." 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 records in the absence of a prima facie showing that such records existed in the possession of the agency. See, e.g., 06-ORD-042; 08-ORD-189. The analysis contained in 12-ORD-110, a copy of which is attached hereto and incorporated by reference, is controlling on this issue.
However, 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. Our independent review of the Department of Corrections Records Retention Schedule did not reveal a Records Series that seemed to encompass "provider schedules." However, a representative of the Kentucky Department for Libraries and Archives confirmed that such records would fall within the parameters of Records Series M0018, Informational and Reference Material (documenting materials "which may aid in or support the conduct of official agency business, but which are not critical to continued operations"), on the General Schedule for State Agencies , the contents of which include "some logs and tracking tools." The Disposition Instructions for this Records Series provide to "[d]estroy when no longer needed. " See 12-ORD-050 (Legal Assistance Log falls into Series M0018 and Kentucky State Reformatory therefore could not be said to have violated the Act, even assuming that a responsive Log was created, in denying the request as the agency was not required to maintain it after it was no longer needed) .
KDLA advised that provider schedules could reasonably be considered a "tracking tool" and the need for the records therefore would not go beyond the day of creation as the more critical information would consist of any material added to an inmate's medical file. Similarly, Ms. Barker advised that if a patient/ inmate is actually seen by a provider, a note of the encounter is made in the inmate's electronic medical record. Although LLCC did not initially provide any explanation or authority for its apparent policy of destroying the schedules each day, nor did it rely upon Series M0018 specifically, the agency did explain the reason for destruction of the record in a manner that is arguably otherwise consistent with existing legal authority on appeal. See 11-ORD-009. Resolution of whether the nonexistent schedule in dispute would have also been protected under KRS 61.878(1)(i) and/or could have been properly destroyed under the rationale of Courier Journal v. Jones is unnecessary, however, given that LLCC was authorized to destroy the record in the normal course of business per applicable records retention requirements and cannot be said to have violated the Open Records Act in denying a request for a nonexistent record. In light of the foregoing, this office must affirm the agency's denial of Mr. Bradford's request notwithstanding the underlying concerns expressed in his letter of appeal.
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:
Byron Bradford, # 159856Kristy MullinsAmy V. Barker