Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Leroy Hampton initiated this appeal challenging the disposition by the Kentucky State Reformatory (KSR) of his January 29, 2015 request for a "copy of final sentence and [judgment], and a copy of the amended sentence and judgment for" Warren Circuit Court Case Number 05-CR-00536. In a timely response KSR advised, "No amended order on file." KSR provided him with a copy of the Final Sentence and Judgment (four pages) in a timely manner. On appeal Mr. Hampton asserted, "The Judgment was amended and sentence entered by the Warren Circuit Court under Indictment [No.] 05-CR-00536." Upon receiving notification of Mr. Hampton's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker correctly observed that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. Citing prior decisions of this office, Ms. Barker further noted that a public agency discharges its duty under the Open Records Act by affirmatively indicating that records being sought do not exist. A public agency "is not required to 'prove a negative,'" Ms. Barker continued, in explaining the nonexistence of a record(s). See 11-ORD-209. KSR advised that a review of Mr. Hampton's inmate file, "where records of this type are maintained," was conducted and no amended order was located. For these reasons, KSR asked the Attorney General to affirm its disposition of Mr. Hampton's January 29 request.
The Attorney General has consistently recognized that 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; 04-ORD-205. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records being sought exist, with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist following a reasonable search as KSR has maintained here. See 04-ORD-205; 99-ORD-98; 12-ORD-056. 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. This office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3; 12-ORD-087. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
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, 1 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " 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 its burden of proof under KRS 61.880(2)(c), a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. 11-ORD-104, p. 5. See 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").
When, as in this case, a public agency has denied that any responsive public records exist aside from those already provided, after making "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 2 and the record on appeal does not contain any facts or evidence from which existence of additional records can be presumed, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 12-ORD-030; 12-ORD-161. Because Mr. Hampton "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. 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 agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074). KSR provided Mr. Hampton with a copy of the only existing responsive "sentence and judgment" in the possession of the agency following a reasonable search and notified him in writing that no additional documents were located. Nothing else is required on the facts presented. See 12-ORD-030; 14-ORD-004.
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.
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