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 Department of Corrections, Division of Probation and Parole violated the Kentucky Open Records Act in denying Jonathan Walker's January 3, 2014, request for "a copy of the outside [laboratory] results of the urine sample taken from me by Probation and Parole in 2011." If no such results exist, Mr. Walker continued, "please send documentation stating such." By letter dated January 10, 2014, District 19 Supervisor James L. Wagner, Jr. denied Mr. Walker's request on the basis of KRS 439.510, advising that "[a]ll information obtained in the discharge of official duty by any probation and parole officer is privileged from disclosure pursuant to KRS 439.510. This privilege applies to exempt from disclosure all reports and records prepared by the Probation and Parole Officer. " Mr. Walker initiated this appeal by letter dated January 15, 2014. Based upon the following, this office affirms the agency's ultimate disposition of Mr. Walker's request.
Upon receiving notification of Mr. Walker's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of Probation and Parole. Ms. Barker advised that a review of Probation and Parole records "after receipt of the appeal indicates that laboratory results for a urine sample provided in November 2011 do not exist because the lab was not able to process the sample because the quantity was insufficient." Citing prior decisions of this office, Ms. Barker observed that a public agency cannot provide a requester with access to a nonexistent record nor is a public agency "required to 'prove a negative' when explaining that it does not have a record or that it does not exist." (Citation omitted). Probation and Parole was also correct, she advised, in asserting that KRS 439.510 would encompass the results in dispute.
Quoting the language of KRS 439.510, incorporated into the Open Records Act, she correctly argued that prior decisions, including 01-ORD-97, 05-ORD-265, 08-ORD-088, and 11-ORD-169, upheld the denial of requests for Probation and Parole records on that basis. According to Ms. Barker, the "urinalysis testing result documents requested were for a sample taken and sent for testing by a probation and parole officer in the course of his duties in supervising the offender." Even if the results document existed, she continued, "it would have been obtained by a probation and parole officer in the discharge of official duties and the record would be exempt from disclosure. " Ms. Barker further argued that KRS 439.510 applies "to the record from the lab indicating that the sample could not be tested, which was obtained by a probation and parole officer in the discharge of his official duties."
Probation and Parole is not required to produce a nonexistent record(s) nor is the agency expected to "prove a negative" in order to refute a claim that a certain record(s) exists under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 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"). However, the inability of the agency to produce the results document because of its nonexistence was "tantamount to a denial and . . . it was incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019.
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 was incumbent on the agency to so state in clear and direct terms. " 01-ORD-38, p. 9 (emphasis added)(other citations omitted); 09-ORD-019; 13-ORD-205. 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. 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; 09-ORD-145.
Insofar as Probation and Parole initially failed to affirmatively indicate whether any responsive document(s) existed, it failed to fully discharge its duty under the Open Records Act. Further, in responding to Mr. Walker's request, Probation and Parole was unable to discharge this duty because it failed to conduct any type of reasonable search to locate any responsive document(s) 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). See 13-ORD-205. However, Probation and Parole ultimately discharged its duty under the Act in conducting a reasonable search, notifying Mr. Walker that no results document existed, and providing a credible explanation for the nonexistence of such a document; nothing else is required.
Probation and Parole also properly withheld the only existing document responsive to Mr. Walker's request for substantiating documentation per KRS 439.510. The following excerpt from 12-ORD-155 is controlling on this issue:
KRS 439.510 provides:
The urinalysis results, and related records, to which Mr. [Walker] requested access "would be . . . public record[s] subject to the Open Records law, KRS 61.870, except for the fact that [they are] excluded from public inspection by virtue of KRS 61.878(1)[(l)] which exempts any records made confidential by the General Assembly." Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987). Operating in conjunction with KRS 61.878(1)(l), KRS 439.510 excludes from inspection "[a]ll information obtained in the discharge of official duty by any probation or parole officer. " The statute makes no exception for the individual to whom the information relates, and Mr. [Walker] has no greater right of access to records that fall within its parameters than does the public generally.
12-ORD-155, p. 2. Because Probation and Parole cannot produce a nonexistent record for inspection or copying, and existing legal authority otherwise validates the agency's position, its ultimate disposition of Mr. Walker's request is affirmed.
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.
# 60
Distributed to:
Jonathan Walker, # 237555James L. "Jim" Wagner, Jr.John CummingsAmy V. Barker