Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in not producing records it did not have in its possession. We find that LSCC did not violate the Open Records Act in not producing records that it properly did not retain.
Brandon R. Bruin ("Bruin") submitted an open records request to LSCC on Feb. 10, 2014. Bruin requested "a copy of each and every letter addressed to Lisa Brickey and Mary Godfrey within my file." LSCC responded on Feb. 10, 2014 that the request was "denied per KRS 81.884, these documents do not exist." Bruin initiated his appeal on Mar. 6, 2014. Bruin provided varying grounds for his appeal, ranging from "the agency may not be obligated to prove a negative, but to be held accountable 'when a positive exist!'" to "void of CPP 15.6II(c)(2)(f), I was found guilty for exhausting administrative remedias, placed in isolation, and the harassment has worsened," to "displaying a clear irrefutable official Misconduct, by Kentucky Department of Corrections Staff. " Bruin requested that "this memorandum and accompanying material in support attached, make it in the hand of the proper personnel, and this matter gets thoroughly investigated not only for myself, but for the other individuals assigned residence at the said facility." Bruin attached several supporting documents, including a supplemental memorandum enclosing "information as to why Little Sandy Correctional Complex has such a high volume of denials." One of the documents was a handwritten memorandum from Bruin dated Dec. 23, 2013, requesting permission to become an institutional barber or to be transferred, which contained on the reverse what appeared to be a handwritten note made by Lisa Brickey. Bruin also attached a memorandum dated Sept. 12, 2013 from Mary Godfrey to Bruin concerning Bruin's request for legal aid training, and a memorandum from Mary Godfrey to Bruin dated May 16, 2013 addressing his concerns about possible pork products in LSCC meals. The other documents were a detention order and disciplinary reports which appear unrelated to Bruin's record request.
LSCC responded on Mar. 19, 2014:
LSCC staff reviewed KOMS for the requested correspondence and none was located in KOMS. . . . LSCC staff spoke with Lisa Brickey who stated she had not kept a copy of the correspondence from inmate Bruin. LSCC staff also checked with the secretary of former Deputy Warden Mary Godsey who searched her records and was unable to locate any of the requested correspondence. . . .
These were routine correspondence regarding housekeeping type issues that were not required to be maintained past their usefulness to the institution and up to two years. (M0002.)
"A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. In order to overcome an agency's denial that records exist, Bruin "must make a prima facie showing that such records do exist," Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). Bruin has provided at least one document which appears to be a correspondence signed by Lisa Brickey, and two memorandums from Mary Godfrey, thus proving that some responsive records do exist. However, LSCC has argued that it did not retain those records, as they were routine correspondences, citing to Series M0002 of the State Agency Records Retention Schedule, which provides that routine correspondences should be retained no longer than two years. The correspondences provided by Bruin are of a routine nature, and LSCC's failure to retain them is not indicative of improper records management. If LSCC did not retain the records, it cannot provide them to Bruin. Regarding Bruin's other allegations, "the Attorney General is not empowered to . . . resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 12-ORD-162. Accordingly, we find that LSCC did not violate the Open Records Act in not providing routine correspondences it did not retain.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Brandon R. Bruin # 240651Alicia CantrellAmy V. Barker