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 Kentucky Correctional Institution for Women violated the Kentucky Open Records Act in the disposition of Charon Anderson's February 19, 2014, request for specified records pertaining to her participation in the Willow Program at KCIW "In and around Sept. 2012," namely: 1) Application Forms, Notification of Acceptance; 2) Program Agreement or contract; 3) Progress Notes; 5) Psychological data and psychological reports; 6) Releases of information; 7) Discharge summaries; 8) Individual coursework; 9) Individual Treatment Plan; 10) Individual aftercare recommendation; and 11) Other relevant materials. Asserting that she had not received a response of any kind, Ms. Anderson initiated this appeal by letter dated March 4, 2014.
Upon receiving notification of Ms. Anderson's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KCIW. Ms. Barker initially advised that KCIW did not actually receive Ms. Anderson's February 19 request until this office sent a copy attached to the notification. The Attorney General cannot resolve factual disputes concerning the actual delivery and receipt of a request; however, absent objective proof to the contrary, this office does not have any reason to question the veracity of either KCIW or Ms. Barker, and therefore has no basis upon which to find that KCIW failed to comply with KRS 197.025(7). In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. See OAG 89-81; 03-ORD-061; 08-ORD-172; 11-ORD-209. Notwithstanding this factual dispute, KCIW issued a written response when it received the copy of Ms. Anderson's February 19 request attached to her March 4 letter of appeal. Inasmuch as KCIW agreed to provide Ms. Anderson with copies of all existing responsive documents in the possession or custody of the agency upon receipt of a reasonable copying fee 1 and, following a reasonable search, provided credible explanations for the nonexistence of the documents remaining in dispute, this office affirms the disposition of Ms. Anderson's February 19 request by KCIW.
By letter directed to her on March 27, Offender Information Supervisor Sarah St. Clair advised Ms. Anderson "that one item of coursework you requested was located. The coursework from Willow is generally not retained by the program. The coursework is reviewed by the staff and returned to the inmate." Ms. St. Clair further notified Ms. Anderson that no program agreement exists "in your SAP [Substance Abuse Program] information, but I am sending your consent to participate. You have asked for your psychological data and psychological reports. The forms that you requested do not exist in your Willow folder." Upon receipt of payment, Ms. St. Clair continued, "you will be sent your psychological evaluation from the program. There is no release of information in your SAP file for the September 2012 period you requested." When you participated in the Willow program, she further explained, "an individualized treatment plan was not completed due to the program being in transition between psychologists. No aftercare recommendation exists since you did not complete the program. Please be advised that the SAP application for your time in the Willow program at KCIW no longer exists." With regard to Ms. Anderson's request for "Other relevant materials," KCIW was unclear as to which records were being sought. However, Ms. St. Clair advised that upon receipt of payment KCIW would provide a copy of "the SAP refusal and memo referring you to Willow mentioned above." In closing, Ms. St. Clair explained that "[y]our Willow file and KOMS [Kentucky Offender Management System] have been searched for records pertaining to your Willow participation in September 2012 and those located have been previously addressed in this response. Please clarify what additional materials you are seeking, so that a search may be made for those records."
In light of the foregoing, Ms. Barker correctly asserted on appeal that any issues regarding those records which KCIW agreed to provide to Ms. Anderson upon receipt of payment are moot per 40 KAR 1:030, Section 6. She further noted that "[a] number of the requested records did not exist and [Ms.] Anderson was informed of that fact." Citing prior decisions of this office, Ms. Barker correctly argued that a public agency cannot provide a requester with access to nonexistent records nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist. In response to requests for information made by this office under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, Ms. Barker clarified that while Records Series 05881 on the Department of Corrections Records Retention Schedule dictates the retention period for Substance Abuse Program Participant Files, her understanding is that said Files are created following admission to Willow and KCIW is "treating the application as a record to be kept only as long as needed under M0002 [Routine Correspondence, found on the General Schedule for State Agencies, which must be retained no longer than two years]"; the "refusal was considered to be part of the unknown 'other relevant materials'" to which Ms. Anderson requested access; and, the evaluation to which KCIW referred is a "report." Finally, in explaining the lack of responsive "psychological data," Ms. Barker advised that Ms. Anderson received psychological testing as part of her mental healthcare, but such records are not Willow Program records; the "raw testing data is not a responsive record given this" but is maintained by the psychologist, who is "prohibited from releasing the records in the manner requested by the psychology code of ethics."
Based upon the following, in the absence of a prima facie showing by Ms. Anderson that additional responsive documents exist in the possession or custody of KCIW, this office concludes that KCIW discharged its duty under the Act by agreeing to furnish Ms. Anderson with copies of all existing responsive documents following a reasonable search, ultimately confirming that no additional records exist, and explaining why.
As the Attorney General has consistently recognized, a public agency cannot produce nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right of inspection 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; 04-ORD-205. A public agency's response 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 indicating that no such records exist, following a reasonable search, as KCIW has maintained here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 11-ORD-081. 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, 2 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 open records disputes 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 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; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records in dispute at a minimum if appropriate. See 00-ORD-120; 04-ORD-075. When, as in this case, a public agency denies that additional records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. Under the circumstances presented, 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. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
KCIW now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Anderson's claim that additional responsive records exist.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id. at 341. Addressing this dilemma, in Bowling the Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim], he or she must make a prima facie showing that such records do exist." Id. 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 records being sought existed in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 08-ORD-189; 12-ORD-012.
However, this office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." 11-ORD-074, p. 3. Ms. Anderson has not cited any objective proof or persuasive authority in support of her position. To ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence" ). No such authority has been cited or independently located here and KCIW has credibly explained the lack of responsive documentation where necessary. Because Ms. Anderson has "produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [she has] requested, we do not have a sufficient basis on which to dispute the agency's representation that no [additional] records exist." 09-ORD-214, pp. 3-4; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Compare 11-ORD-074. In the absence of the requisite prima facie showing, or any evidence to suggest that additional records were created or maintained in this case, the agency's ultimate disposition of Ms. Anderson's request(s) is affirmed. See 12-ORD-183.
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:
Charon Anderson, # 177122Sarah St. ClairAmy V. Barker
Footnotes
Footnotes
1 See KRS 61.874(1) and (3); Department of Corrections Policies and Procedures (CPP) 6.1.
2 See KRS 61.8715.