Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in the disposition of inmate Justin Richardson's request for copies of records relating to a dangerous-contraband incident. For the reasons that follow, we find that the LSCC's response was in compliance with the Act.
Mr. Richardson's request, received on September 16, 2013, was for the following:
A copy of inmate Richardson, Justin R. D.O.C. # 236910, Appeal to the Warden from Disciplinary Report DR #: LSCC-2013-00910; Extraordinary Occur[r]ence Report # EOR 07292013I01; the Lab Test Results and Field Test Result of the suboxones alleged in DR #: LSCC-2013-00910; The Chain of Custody Evidence form generated in connection to DR #: LSCC-2013-00910[.]
On September 17, 2013, the LSCC responded with a memorandum from Beth Harper of the Records Department stating as follows:
A copy of the requested appeal and chain of evidence are enclosed. Your request for the EOR is denied because it has been determined that it would constitute a threat to the security of other inmates, the institution or institutional staff, and cannot be provided. The Department makes decisions concerning security risks under authority of KRS 197.025 and KRS 61.878(1)(l). See 99-ORD-47.
Per internal affairs there are no field tests or lab results for this specific write up. Therefore copies cannot be provided.
Mr. Richardson initiated an open records appeal on September 18, 2013.
The response to Mr. Richardson's appeal was submitted by Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, on behalf of the LSCC. The response states, in part, as follows:
Providing the Extraordinary Occurrence Report will give away details and methods of the investigation that would harm the institution's ability to control contraband and detect future rule violations or crimes. ?
In his letter of appeal, inmate Richardson acknowledges that LSCC does not have to prove a negative when it does not provide a document, but asserts that he is entitled to an explanation of "what happened to the mandatory Test Results." The institution explained that there were no field tests or lab results concerning the drug. These tests were not performed so no record exists. These tests are not required by policy and inmate Richardson's assertion that they are mandatory does not make them so.
KRS 197.025(1), the subsection relied upon by the LSCC, provides as follows:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
This subsection affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179.
In 07-ORD-039, we affirmed the denial of a request for an extraordinary occurrence report in its entirety on grounds "that the EOR was a step by step, minute by minute account of the actions taken by [facility] security personnel after the actions of the inmates were discovered and that disclosure of information contained in the EOR to the Complainant [would] constitute a threat to the security of the institution." We find no significant distinction in this case. This office has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of records would pose a legitimate security threat. 06-ORD-026 (citing 03-ORD-190); 00-ORD-125; 96-ORD-179. Since the EOR requested by Mr. Richardson could be deemed to pose a security risk, the broad discretion of the facility under KRS 197.025(1) applies and we decline to substitute our judgment. The LSCC's response was a proper exercise of the facility's discretion and therefore was in accordance with the Open Records Act.
As for the nonexistence of field tests or lab results, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we conclude that the LSCC did not violate the Open Records Act in its response to Mr. Richardson's request.
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 proceedings.
Distributed to:
Mr. Justin Richardson, # 236910Ms. Beth HarperAmy V. Barker, Esq.