14-ORD-248
December 23, 2014
In re: Lisa Shirley/Shelby County Detention Center
Summary: A public agency cannot produce a nonexistent record(s) for inspection or copying nor is a public agency required to “prove a negative” in order to refute an unsubstantiated claim that a certain record exists under governing case law. The Shelby County Detention Center ultimately discharged its duty under the Open Records Act by advising requester in writing that no responsive document existed.
Open Records Decision
Lisa Shirley initiated this appeal challenging the failure of the Shelby County Detention Center (SCDC) to issue a timely written response upon receipt of her November 4, 2014 request1 “to see in your policy and procedure, KRS, ordinance or any other material you may have that state inmates are not allowed, their religious material, legal material, or personal material (denture adhesive) . . . etc.” Upon receiving notification of Ms. Shirley’s appeal from this office,2 Jailer Bobby Waits responded via letter dated November 18, 2014, but received in this office by facsimile transmission on November 20, 2014, by stating, “There is no such document.”
As a public agency, SCDC must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that all public agencies must follow in responding to requests made under the Open Records Act, providing, in relevant part, that upon receipt of a request, a public agency “shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.” See 11-ORD-030. As in 14-ORD-247, this office finds that SCDC violated the Act from a procedural standpoint in failing to issue a timely written response per KRS 61.880(1) but has no basis upon which to find a substantive violation. Because the subject request in that appeal was very similar to Ms. Shirley’s request, and the agency’s response on appeal was identical, the analysis contained therein is also controlling here. A copy of 14-ORD-247 is attached hereto and incorporated by reference. SCDC cannot provide access to a nonexistent record(s) nor is the agency required to “prove a negative” in order to refute an unsubstantiated claim that a certain record(s) exists under Bowling v. Lexington-Fayette Urban County Government, 172 S.W.2d 333, 341 (Ky. 2005). The agency’s ultimate disposition of the request 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.
Jack Conway
Attorney General
Michelle D. Harrison
Assistant Attorney General
#472
Distributed to:
Lisa Shirley, #235556
Bobby Waits
Hart Megibben
[1] Ms. Shirley also enclosed two separate forms dated October 18, 2014, and October 20, 2014, respectively, neither of which constituted requests made under the Open Records Act or sought public records within the meaning of KRS 61.870(2); accordingly, none of the issues raised therein, which are beyond our scope of review under KRS 61.880(2), will be addressed in this decision.
[2] If Ms. Shirley initiated her appeal without allowing the agency three days, excluding weekends and holidays, upon receipt in which to respond under KRS 61.880(1), her appeal was premature. Because SCDC did not raise this argument nor is the record entirely clear, this office will address the merits of her appeal.