Opinion
Opinion By: Jack Conway,Attorney GeneralMichelle D. Harrison,Assistant Attorney General
Open Records Decision
Willie J. Stewart initiated this appeal challenging the denial by Northpoint Training Center (NTC) of eleven separate requests that he submitted on either October 17, 2014, or October 21, 2014, for copies of specified "Receipts with Inmate Signature on them," in many cases "Legal services receipts," all identified with reference numbers and transaction dates ranging from 2009 to 2014. In timely written responses, NTC Inmate Accounts Staff advised Mr. Stewart, "[i]in accordance with KRS 61.872(5)," that the documents requested do not exist. Citing prior decisions of this office, NTC correctly observed that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess and generally discharges its duty under the Open Records Act in affirmatively indicating that records do not exist. On appeal Mr. Stewart noted that he obtained the reference numbers and transaction dates from the "account transaction papers" that were provided to him by NTC, and reiterated that he requested "receipts or Cash Pay Out (C.P.O.) or Ledger for Payments that had my signature on them."
Upon receiving notification of Mr. Stewart's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, elaborated upon the agency's position. She initially advised that Mr. Stewart failed to perfect his appeal relative to his request identified as No. 1130 insofar as he did not include a copy of the agency's response per KRS 61.880(2)(a). Quoting 40 KAR 1:030, Section 1, Ms. Barker asserted that the Attorney General should not consider his appeal of that request. Because the mandatory language of KRS 61.880(2)(a) and 40 KAR 1:030, Section 1 validate Ms. Barker's position, this office will not consider issues related to request No. 1130.
In addressing the remainder of the requests in dispute, NTC first reiterated its original response. Ms. Barker further advised that NTC explained in subsequent responses "that receipts are not generated when a lien is applied to an inmate's account at an institution. Since the requested receipts are not created, they cannot be provided." Upon receipt of Mr. Stewart's appeal, Ms. Barker advised, "NTC staff offered the records which created the liens (if they were in its possession), in case those were the records being sought by [Mr.] Stewart. (See supplemental responses attached.) For records that were created at NTC, a number of records were offered upon payment of the cost of the copies." Mr. Stewart may submit his authorization to allow money to be withdrawn from his inmate account per the instructions contained in the supplemental responses, NTC continued, and specify which records that he wishes to receive. With regard to such potentially responsive documents, the agency maintained that any related issues were moot per 40 KAR 1:030, Section 6. A few of the records created at NTC have been destroyed, Ms. Barker continued, and cannot be provided since they no longer exist. Many of the records were not created at NTC and the institution therefore does not possess those records. 1
The Attorney General has consistently recognized that a public agency cannot provide a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 12-ORD-087; 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" ); 12-ORD-195.
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, 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). Simply put, Kentucky's Open Records 2 Act applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120. When, as in this case, a public agency denies that any responsive documents exist in the agency's possession or control beyond those already provided, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1. However, a public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records exist, with the necessary implication being that a public agency discharges its duty under the Act in affirmatively indicating that certain records do not exist, and explaining why, as NTC ultimately did here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122.
In responding to Ms. Stewart's requests and his appeal, 3 NTC affirmatively indicated that no documents existed that would properly be characterized as "receipts." Although NTC did not initially offer any explanation for the nonexistence of such records, and therefore failed to satisfy its burden of proof under KRS 61.880(2)(c), NTC ultimately advised Mr. Stewart in writing that no receipts are generated when a correctional facility places a lien on an inmate account. NTC further agreed to provide Mr. Stewart with access to any existing "legal library sheet" in the possession of the agency which might contain responsive information and provided him with contact information for the custodial agency when appropriate per KRS 61.872(4). Nothing else is required. See 11-ORD-068; 14-ORD-209. The agency's ultimate disposition of the requests is affirmed. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
# 458
Distributed to:
Willie J. Stewart, # 093696Sara CooleyAmy V. Barker
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