Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Chris Hawkins initiated this appeal challenging the denial by Green River Correctional Complex (GRCC) of his June 22, 2015, request for "[a]ll reports involving C/O Dennis Wester using excessive force on inmate James Allgood on 5/26/15 and/or relating to unprofessional conduct against inmate Chris Hawkins on 5/26/15" and "[a]ll reports involving C/O Wester being relieved from his post at medical pill call on 6/25/15 for unprofessional conduct. " Quoting the language of KRS 197.025(2) without further explanation, GRCC denied Mr. Hawkins' request. On appeal Mr. Hawkins maintained that said reports do contain a "specific reference" to him as he "was personally with James Allgood when he reported C/O Dennis Wester using excessive force" and "reported the incident to UAI Michael Robinson and UAII Steve Ford." Mr. Hawkins further asserted that he "personally advised Lt. Sarah Morris that C/O Dennis Wester was demonstrating unprofessional conduct at the PM pill call." 1
Upon receiving notification of Mr. Hawkins' appeal from this office, Staff Attorney Oran S. McFarlan III, Justice and Public Safety Cabinet, responded on behalf of GRCC. Because Mr. Hawkins "requested records that did not contain a specific reference to him and the requested records do not exist, Mr. McFarlan maintained, GRCC properly denied his request. (Original emphasis.) Citing prior decisions of this office applying KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), GRCC correctly observed that "[t]he Attorney General's Office has repeatedly upheld the denial of records to an inmate for that reason." However, Mr. McFarlan went on to advise that GRCC has now determined it "has no reports fitting the description provided" in the request. In his July 21, 2015, affidavit (copy attached to Mr. McFarlan's appeal response) Deputy Warden of Security Ron Beck stated, "I attempted to locate the reports requested for the dates indicated by searching my email and a file of information reports received, but I was unable to find any reports that are responsive to [Mr.] Hawkins' request. In short, the requested reports do not exist." Accordingly, GRCC ultimately asserted that a public agency cannot provide a requester with access "to a record that it does not have or which does not exist." Citing prior decisions of this office, GRCC correctly argued that a public agency "is not required to 'prove a negative' when explaining that it does not have a record or that the record does not exist." Notwithstanding certain deficiencies in the agency's initial response, this office affirms the final disposition of Mr. Hawkins' request on that basis.
GRCC is not required to produce a nonexistent record(s) nor is the agency expected to "prove a negative" in order to refute a claim that a certain record(s) exists under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). 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 KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 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" ); 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"). However, the inability of the agency to produce the reports because of their nonexistence was "tantamount to a denial and . . . it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019.
As the Attorney General has consistently recognized, 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. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted); 09-ORD-019; 13-ORD-205. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient ." 02-ORD-144, p. 3 (emphasis added); 09-ORD-145; 10-ORD-215. Accordingly, this office has consistently recognized that a response by a public agency 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 so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-145.
"[GRCC] cannot produce for inspection a record[s] that never existed, but it is incumbent on the [agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2. On those occasions when the records do not exist, GRCC's denial of the request "should be premised on the records' nonexistence and not an exception that has no application." Id. Thus, insofar as GRCC initially failed to affirmatively indicate whether the reports existed, it failed to fully discharge its duty under the Open Records Act. GRCC was unable to discharge this duty because it failed to conduct a reasonable search to locate any responsive document(s) before denying the request and was therefore necessarily unable to identify the steps taken as required to satisfy its burden of proof under KRS 61.880(2)(c). See 13-ORD-205. However, GRCC ultimately discharged its duty under the Act in conducting a reasonable search and notifying Mr. Hawkins in writing that no such reports existed. GRCC cannot produce nonexistent records for inspection or copying and its denial is affirmed on that basis. See 14-ORD-107.
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.
Footnotes
Footnotes
1 Mr. Hawkins indicated that Department of Corrections (DOC) Deputy Commissioner James Erwin advised that Warden Alan Brown will be investigating C/O Wester's actions on May 26, 2015, in a letter directed to Mr. Hawkins, a copy of which Mr. Hawkins indicated that he was enclosing. However, no such letter was attached to his July 7, 2015, appeal nor would it necessarily alter the analysis.