Request By:
Denzil Burton, # 160259
Samantha Rash
Catherine M. Stevens
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Denzil Burton initiated this appeal by letter dated July 7, 2015, challenging the denial by the Kentucky State Reformatory (KSR) of his June 24, 2015, request for "emails sent from Frankfort as to why my escape was not being taken of [sic] my record after being dismissed. They were sent to Ms. Bradford. It stated the escape stands." KSR Offender Information Specialist Samantha Rash denied Mr. Burton's request in a timely written response, advising that "Deputy Warden Anna Valentine and KSR [are] withholding staff e-mails under the security exemption. . . ." Quoting the language of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), KSR observed that prior decisions of the Attorney General have recognized the broad discretion afforded the Commissioner by that confidentiality provision. 1 In the alternative, KSR invoked KRS 61.878(1)(i) and (j), advising that "emails can contain opinions, recommendations and preliminary information other than that which is intended to give notice of final action of a public agency. "
On appeal Mr. Burton advised that, "There was an escape charge against me but [it] was dismissed in the Circuit Court. The institution is still using it during my yearly classification. " Mr. Burton questioned how disclosure of the requested e-mail (s), which mentions him by name, would constitute a threat to the safety and security of KSR. Upon receiving notification of Mr. Burton's appeal from this office, Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Stevens advised:
"Custody Classification" is a score derived from analysis of various criteria to determine what level of custody is appropriate for an inmate. [Mr.] Burton is requesting emails "from Frankfort" to Correctional Training Officer (CTO) Stephanie Bradford of KSR addressing the issue of a previous escape attempt and its impact on his Custody Classification. KSR can identify no emails "from Frankfort" or any DOC personnel located in Frankfort to CTO Bradford stating words to the effect of "the escape stands." However, in an effort to not read the request too narrowly, a few emails were identified involving CTO Bradford in which the classification scoring of this inmate was preliminarily discussed. These emails are exempt from disclosure in order to safeguard the security of the institution. Moreover, these emails contain preliminary opinions and recommendations that were not adopted as a part of the final agency action.
According to Ms. Stevens, KSR determined "that it would be a threat to the security of the correctional staff involved, as well as the institution as a whole, if the inmate were to learn the identities of the participants in the discussion and their potentially differing views." The Department of Corrections (DOC) "does not release information that could put staff and the larger institution at risk." Citing a line of decisions by this office construing both KRS 197.025(1) and 61.878(1)(i) and (j), KSR reiterated its original position that any e-mails which might be potentially responsive to Mr. Burton's request were properly withheld.
KSR 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 requested e-mail (s) because of its 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.
The right to inspect public records only attaches 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.
"[KSR] 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, KSR's denial of the request "should be premised on the records' nonexistence and not an exception that has no application." Id.; 15-ORD-151. As recently as June 17, 2015, this office clarified that "we have always based our deference to the commissioner's judgment [under KRS 197.025(1)] upon the reasoning articulated by the agency in its explanation of how the records pose a threat to security." 15-ORD-109 (In re: Uriah Pasha, Kentucky State Reformatory), p. 3. Here, as in that case, "KSR gave no explanation of how the security exemption would apply to all 'staff e-mails' as a category. Nor are we aware of any prior decision in which we recognized 'staff e-mails' in general posing an articulable security threat." Id. Based on the fact that KSR "did not realize no responsive e-mails existed, but merely denied the request based on what a hypothetical e-mail might contain," this office again concludes that KSR "committed a procedural violation of the Act by its failure to conduct an appropriate search for the requested e-mail. " Id.; 13-ORD-205; 15-ORD-151.
KSR ultimately conducted a reasonable search per 95-ORD-96 (requiring a "good faith effort") and notified Mr. Burton that no e-mail (s) matching the description provided exists; KSR cannot provide that which it does not have. As in 15-ORD-109, this office is not aware of any "established law, policy, or practice pursuant to which an e-mail" that would satisfy Mr. Burton's request would presumptively exist. Id., p. 4. Insofar as KSR ultimately located e-mails that may be responsive based on a lenient interpretation of Mr. Burton's request, existing legal authority supports the agency's invocation of KRS 197.025(1) as justified on appeal. See 12-ORD-218; 15-ORD-109.
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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