Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Christopher Koteras initiated this appeal by letter dated September 17, 2015, challenging the disposition by the "Health Services Manager" at Luther Luckett Correctional Complex (LLCC) of his August 17, 2015, request for information regarding how to "obtain a list of all the medications the [Department of Corrections]/Correct Care Solutions, LLC has listed as formulary and the nonformulary, requiring a co-pay as available to be [prescribed] by a staff psychologist. " 1 By letter of the same date, Registered Nurse Dawn Patterson advised Mr. Koteras, "Your staff psychologist will be able to tell you if the medications you are prescribed are formulary or non-formulary. There is no need for you to have a list of these medications. " By request form directed to Kevin Pangburn, DOC Division of Mental Health, on August 25, 2015, Mr. Koteras asked for "a list of all the DOC formulary and nonformulary psychiatric medications available to be prescribed. " On appeal Mr. Koteras also challenged the failure of DOC to issue a timely written response to his August 25 request.
The Attorney General is precluded from addressing the merits of the instant appeal relative to Mr. Koteras' August 17, 2015, request by operation of KRS 197.025(3), pursuant to which:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
As noted, Mr. Koteras made his first request on August 17, 2015, and received a written response on that same day. His letter of appeal is dated September 17, 2015, thirty-one days later. A rule of strict compliance applies to tardy appeals.
Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994);
City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). "Such appeals are subject to automatic dismissal." 12-ORD-121, p. 2 ("Whatever hardship this may work on the inmate, the twenty day deadline for submission of a perfected open records appeal is not 'tolled' during the period of time that elapses between submission of a deficient appeal and submission of an appeal correcting these deficiencies."); 12-ORD-144; 14-ORD-010. Because Mr. Koteras is a "person[] confined in a penal facility," and he failed to properly challenge the agency's denial of his August 17, 2015, request within 20 days, Mr. Koteras' September 17, 2015, appeal is time-barred relative to said request; accordingly, this office is precluded from addressing the merits of any related issues per KRS 197.025(3). To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). See 02-ORD-54; 07-ORD-058; 08-ORD-209; 14-ORD-001.
Upon receiving notification of Mr. Koteras' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of DOC. Ms. Barker advised that Mr. Koteras' August 25, 2015, request was sent to Mr. Pangburn at the DOC central offices. The DOC lists the custodians to whom inmate requests must be directed in [Kentucky Corrections Policies and Procedures (CPP)] 6.1, which is incorporated by reference in 501 KAR 6:020. 2 Kevin Pangburn is not among the individuals listed. Inasmuch as Mr. Koteras did not comply with relevant provisions of CPP 6.1 in submitting his request, Ms. Barker asserted, no response was required. However, Ms. Barker also noted that even if such a request was properly submitted, "the response would be that a nonformulary list is not maintained by the DOC."
Relying upon prior decisions of this office, 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; the agency discharges its duty under the Open Records Act in affirmatively so indicating. DOC further asserted that "an inmate is not entitled to a list of formulary medications because it does not contain a specific reference to him. A formulary list is not the type of record in which a specific reference would be made to a particular inmate. " Accordingly, Ms. Barker correctly observed that KRS 197.025(2) expressly authorizes the DOC to 'deny a request by an inmate unless the record(s) contains a specific reference to that inmate. ' 08-ORD-271, p. 3." 3 (Original emphasis.) DOC argued that KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), "clearly shows that [DOC] is not obligated to provide copies of records when the records do not contain a specific reference to the inmate who requests copies." 4 Existing legal authority validates the position of DOC on all counts.
Here, as in 11-ORD-098, absent proof that rights granted to all requesters in KRS 61.872(2) were impeded when the agency invoked the specific provision of CPP 6.1 relied upon by DOC, 5 this office "approve[s] the actions of [DOC] in the implementation of the policy because it does not amend, alter, enlarge, or limit the terms of that provision of the Open Records Act. " Id., pp. 3-4; See
Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) citing
Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000). Even assuming that Mr. Koteras had properly submitted his request, as DOC correctly asserted on appeal, it cannot produce that which it does not have nor does the inability of the agency to produce a nonexistent record violate the Open Records Act in the absence of any facts from which existence of such a record can be presumed or any legal authority mandating the creation and maintenance of such a record.
DOC cannot produce a nonexistent record for inspection or copying nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See
Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 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); 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"); 12-ORD-038. The record on appeal is devoid of any showing. However, even if a list of nonformulary medications existed in the possession of DOC, neither it nor a list of the formulary medications would contain a specific reference to Mr. Koteras.
As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes DOC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See also 00-ORD-040; 03-OR-074; 07-ORD-219; 10-ORD-136; 12-ORD-070. Because neither of the requested lists contains a specific reference to Mr. Koteras (or any inmate) , under the mandatory language of KRS 197.025(2) he is not entitled to inspect or to receive a copy of such records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Koteras may believe that application of KRS 197.025(2) imposes under the circumstances, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the unambiguous language of this provision; accordingly, DOC properly denied access to any existing responsive list per KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 99-ORD-161, p. 2.
In summary, Mr. Koteras' appeal is time-barred relative to his August 17, 2015, request as he failed to initiate this appeal within 20 days per KRS 197.025(3). DOC cannot produce a nonexistent list or that which it does not have in response to Mr. Koteras' August 25, 2015, request nor is the agency required to produce any existing responsive list as it does not contain a specific reference to Mr. Koteras; accordingly, DOC properly relied upon KRS 197.025(2) in denying access. The agency's denial of Mr. Koteras' August 25, 2015, request is affirmed for these reasons.
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 This office "has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4. See OAG 76-375; 10-ORD-201. In other words, "the Kentucky Open Records Act was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 93-ORD-50, p. 2; see 02-ORD-165. Simply put, "'what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it.'" 02-ORD-165, p. 5, quoting OAG 91-12, p. 5.
2 Ms. Barker relied upon CPP 6.1 § 2(B)(2)a. and b., which, respectively, provide that requests from the inmate population shall be forwarded to either the "institutional mail coordinator" or by first class regular mail to the custodian of the agency whose records are requested. Hand-delivery of a request made under the Open Records Act is also prohibited under the same policy.
3 KRS 197.025(2) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
4 KRS 61.878(1)(l) removes from application of the Open Records Act all "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
5 Pursuant to KRS 61.872(2), "[a]ny person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected."