Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Anthony Mattingly, a Department of Corrections inmate currently housed at Marion Adjustment Center, initiated this appeal by letter dated April 1, 2015, challenging the failure of Communicare Inc. New Beginnings SAP -- Hardin County Detention Center to issue a timely written response to his March 2, 2015 request, directed to "HCDC [Hardin County Detention Center] SAP [Substance Abuse Program] Director," for a copy "of my SAP Graduation Certificate or Verification of my graduation. I graduated Hardin County SAP (Substance Abuse Program) late in 2003." Upon receiving notification of Mr. Mattingly's appeal from this office, Supervisor Cheryl P. Shook, Jail and Community Based SAPs, responded on behalf of Communicare by letter directed to Mr. Mattingly on April 13, 2015. 1 Ms. Shook advised Mr. Mattingly that she had received his request for a copy of his "SAP completion certificate, date of completion late 2003 or early 2004." However, she further explained that "all SAP records are destroyed in six (6) years after SAP completion. Therefore Communicare no longer has a copy of your completion certificate. " Ms. Shook noted that "copies of completion certificates are faxed to Department of Corrections [DOC]. You may be able to obtain a copy by contacting Offender Records" at DOC in Frankfort, Kentucky. She also provided a telephone number and mailing address for that agency. 2
The Attorney General has consistently recognized that a public agency cannot provide a requester access to a nonexistent record(s) or that which it 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 a certain record(s) exists in the possession or control of the agency. 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, 3 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 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. However, in order to satisfy its burden of justifying the denial of a request per KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the record(s) at a minimum. See 97-ORD-17; 00-ORD-120. When, as in this case, a public agency denies that a responsive document(s) exists within its possession or control, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. A public agency's response violates KRS 61.880(1) when it fails to advise the requesting party whether the record(s) exists, with the necessary implication being that a public agency discharges its duty under the Act in affirmatively indicating that a certain record(s) does not exist, and explaining why, as Communicare did here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122.
The analysis does not end there. Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " See 09-ORD-029. Communicare has now affirmatively indicated to Mr. Mattingly in writing that it no longer possesses or maintains the requested certificate and notified him that any such record(s) would be in the custody of DOC per KRS 61.872(4); nothing else is required. This office has no basis upon which to find that Communicare violated the Open Records Act.
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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