Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying Juan Sanders-El's October 14, 2013, request for "copies of photos taken of my head injury on 10-12-2013 by c/o A. Hall # 594." By letter dated October 28, 2013, Offender Information Specialist Kelly Tyree advised that disclosure of any such photos "would constitute a threat to the security of other inmates, the institution or institutional staff," and the "Department [of Corrections] makes decisions concerning security risks under authority of KRS 197.025 and KRS 61.878(1)(l)." Computer generated photographs of an inmate and/or institutional surroundings, NTC continued, "could be used to fabricate identification, facilitate escape," or be used for other purposes that may pose a threat to institutional security, and may therefore be properly withheld in accordance with KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Mr. Sanders-El subsequently initiated this appeal.
Upon receiving notification thereof, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, reiterated the agency's position regarding KRS 197.025(1), noting that Mr. Sanders-El acknowledged in his letter of appeal that his ID was included in the photograph and citing a line of decisions by this office recognizing the broad discretion that provision affords the Commissioner. 1 However, Ms. Barker explained that upon receipt of the appeal, "staff at NTC could not locate the photo when attempting to respond to questions by counsel concerning the photo for the appeal. Counsel has been informed that an incident report is normally made and any photo taken involving an injury attached to the incident report." That was not done in this case, Ms. Barker continued, "for unknown reasons." NTC conducted a search of the locations where "this type of photo is normally stored as well as the storage for the camera and the photo could not be located." At this point, Ms. Barker concluded, "even if the photo did not contain content that was a security issue, it could not be provided since it cannot be located." Inasmuch as public agencies cannot provide access to nonexistent records, nor are public agencies required to "prove a negative" in order to refute a claim that certain records exist, NTC asked this office to affirm its denial.
Although NTC cannot produce that which it does not have, NTC violated the Act in failing to make "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce" 2 any responsive photographs upon receipt of the request and in failing to advise Mr. Sanders-El that a proper search did not locate any responsive photographs until after it received notification of his appeal. NTC also violated the Act from a procedural standpoint in failing to issue a written response within five business days per KRS 197.025(7). The inability of the agency to explain whether the photographs were lost or destroyed, and if so, pursuant to what authority, necessitates a referral to the Kentucky Department for Libraries and Archives for additional review as that agency deems warranted. Loss or destruction of a public record creates a presumption of records mismanagement which NTC has not attempted to rebut.
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. 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. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted); 09-ORD-019; 12-ORD-162. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3 (emphasis added); 09-ORD-145; 10-ORD-215. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
Accordingly, this office has consistently recognized that a response by a public agency 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 so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 03-ORD-205; 09-ORD-145. It was "therefore incumbent on the [agency] to ascertain whether records exist[ed] that [were] responsive to [Mr. Sanders-El's] request, to promptly advise [him] of [its] findings, and to release to [him] all existing [nonexempt] records identified in [his] request." 03-ORD-207, p. 3; 12-ORD-162. Insofar as NTC initially failed to affirmatively indicate that no responsive photographs existed, the agency violated the Act. See 09-ORD-145; 10-ORD-137. Further, in responding to Mr. Sanders-El's request, NTC was unable to discharge this duty because it failed to conduct any type of reasonable search to locate any responsive photographs before denying the request and was therefore necessarily unable to identify the steps taken as required to satisfy its burden of proof under KRS 61.880(2)(c).
In determining whether a public agency has adequately searched for public records in dispute, this office applies the standard first articulated in 95-ORD-96 as follows:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, above at 775.
(Emphasis added.) The initial response by NTC contains no indication that a search of any kind was conducted, let alone the requisite description of the search methods employed. In 10-ORD-051, for example, this office determined that the record on appeal contained insufficient proof that the agencies to which requests were directed "conducted an adequate search for records presumed to exist." This office ultimately concluded that the Attorney General could not "approve agencies' denials based on the records' apparent nonexistence in the absence of such proof." 10-ORD-051, p. 1. No basis for departing from this precedent has been presented here. Accordingly, this office must conclude that in failing to initially "make a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," NTC violated the Open Records Act in this regard as well. 11-ORD-031, p. 3, citing 95-ORD-96, p. 7; see also 11-ORD-036; 11-ORD-113. In responding to Mr. Sanders-El's appeal, NTC identified the locations that were searched to locate any existing responsive photographs and ultimately confirmed that no such photographs were found. NTC did not deny Mr. Sanders-El's assertion that photographs of his injury were taken; rather, NTC acknowledged that such photographs are generally attached to the incident report after being taken, but were not in this case for unknown reasons.
The intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171. Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880 , and the State Archives and Records Act, KRS 171.410 -- 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8. In sum, "the key to records access is effective records management." Id., p. 10. Given the statutorily recognized interrelationship between records management and records access, the instant appeal raises an issue regarding the records management practices of NTC insofar as it was unable to locate photographs, creation of which it has not denied. "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." Id., p. 5. However, since July 15, 1994, when the amendments to the Open Records Act took effect, this office has applied a higher standard of review to denials based upon the nonexistence of the records being sought. In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must, at a minimum, document what efforts were made to locate the missing records and, if appropriate, explain by what authority the records were destroyed. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. See 10-ORD-130; 11-ORD-053. NTC, as indicated, has not attempted to rebut this presumption here.
Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and KDLA with the duty to "assist state and local agencies in applying such standards to records in their custody." KRS 171.530. Of particular significance, the Commission exercised this authority in creating the Department of Corrections Records Retention Schedule , a review of which reveals that Records Series 02999, Inmate Injury Report, does not contain a specific reference to photographs, but "documents reports by inmates when injuries occur and the duty correctional officer is notified. " KDLA has advised that Series 02999 would include any photographs taken of the injury and the retention period for Series 02999 is twenty (20) years. Although NTC cannot produce that which it does not have, and is not required to "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), 3 and prior decisions of this office applying the rule announced in that case, such as 07-ORD-188 and 07-ORD-190, the fact remains that photographs of Mr. Sanders-El's injury were apparently taken and either lost or destroyed rather than being attached to the Report in accordance with NTC's admitted protocol. Accordingly, this office is obliged to refer the matter to KDLA in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted. See 11-ORD-104.
Although the Attorney General does not find, as a matter of law, that NTC violated the Open Records Act by failing to provide Mr. Sanders-El with a copy of the photograph (s), this office does find that NTC subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records, "thereby frustrating the public's right of access." 10-ORD-130, p. 5. Ultimately, this office cannot afford Mr. Sanders-El the relief that he seeks; the Attorney General is not empowered to declare the inability of NTC to produce a nonexistent record(s) a violation of the Open Records Act, in the absence of existing legal authority mandating the creation of such a record(s), or to compel NTC to maintain a certain type of record(s) for a specific period of time. Inasmuch as the latter prerogative resides with KDLA and the Archives and Records Commission, the Attorney General respectfully defers to those entities regarding the issues raised. However, this office does conclude that NTC violated the Open Records Act in failing to issue a timely written response to Mr. Sanders-El's October 14 request. NTC received the request on October 14, as the date stamped copy of record confirms; however, NTC did not respond until October 28, ten business days later. NTC offered no explanation for the delay either initially or in responding to his appeal. Its delay in responding violated the Act from a procedural standpoint.
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:
Juan Sanders-El, # 131019Kelly TyreeAmy V. Barker
Footnotes
Footnotes
1 Prior decisions generally validate the agency's position relative to KRS 197.025(1) in this context; however, this office makes no finding as to whether KRS 197.025(1) was properly invoked on the specific facts presented given that no photographs currently exist and the appeal is resolved on that basis.
2 05-ORD-109, p. 3.
3 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").