Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Jonathan Young initiated this appeal by letter dated March 7, 2016, challenging the denial by the Kentucky State Reformatory ("KSR") of his February 18, 2016, request for "one (1) copy each of the two requests I made to the Adjustment Committee via a form on/about Feb. 27-28 and March 6-7, 2015, wherein I requested CO Miller as a witness and his medical records showing he went to an outside hospital for treatment." On February 25, 2016, Offender Information Specialist Tara Aldridge advised Mr. Young that KSR is "not required to create a document(s) and/or record(s)" that does not already exist. On appeal Mr. Young provided the March 4, 2016, affidavit of Cordaro Boyd in which Mr. Boyd attested that sometime between March and April 2015 he witnessed Mr. Young ask legal aide James Simmons for a "form to request witnesses and document[s] to be added to his write up for his adjustment hearing on the charge that he assaulted C/O Miller." Mr. Boyd further attested that he assisted Mr. Young in completing the form and that he witnessed Mr. Young give the form to Mr. Simmons and request that he give it to the Adjustment Hearing Officer.
Mr. Young also included the March 10, 2016, affidavit of Donald Ray Hall in which Mr. Hall attested that upon being questioned about her failure to respond to requests that he submitted for copies of two forms that he "submitted to her to add witnesses and requests for documents for a prior disciplinary action that I was involved in 7/15/2016," Adjustment Hearing Officer Lieutenant Christine Bishop advised him that she "does not keep those documents" but "throws the documents away after she reviews them." Mr. Young asserted that Mr. Boyd's affidavit supported the claim that he provided the form to Mr. Simmons to give to Lt. Bishop, and questioned whether Lt. Bishop violated the Open Records Act if, as Mr. Hall's affidavit indicated, "she has been destroying the forms submitted to her by inmates requesting to call witnesses and requesting copies of documents pertaining to the disciplinary actions against them by KSR." Even assuming the accuracy of Mr. Hall's assertion that Lt. Bishop had a practice of prematurely destroying such request forms generally, based on his personal experience, that information would not conclusively establish that Mr. Young submitted the specific forms in dispute or that KSR still possesses those forms.
Upon receiving notification of Mr. Young's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker initially advised that KSR received Mr. Young's request on February 25, 2016, and issued a timely response per KRS 197.025(7) that day. KSR conducted a search for the requested forms upon receipt of Mr. Young's request and upon receipt of his appeal, Ms. Barker advised, "but no copy of the requested forms could be located." The forms were not located in the Kentucky Offender Management System (KOMS). Ms. Barker advised that "[n]othing was located to indicate the record existed and the disciplinary hearing recording does not address any request for witnesses." The adjustment hearing officer involved with Mr. Young's hearing no longer works for the Department of Corrections and therefore could not be asked whether she received any forms related to said hearing. 1 For these reasons, KSR maintained that no responsive forms exist. Because a public agency cannot produce that which it does not have, nor is a public agency required, under governing case law and prior decisions by this office, to "prove a negative" in order to refute a claim that certain records exist, Ms. Barker maintained that KSR did not violate the Act in denying Mr. Young's request for the nonexistent forms.
Attached to Ms. Barker's appeal response were five exhibits in support of the agency's position. Exhibit 1 is an e-mail from Ms. Aldridge to Ms. Barker advising that she contacted Lieutenant Walter Wetzel, the current "Adjustment Committee Officer," upon receipt of Mr. Young's request, and Lt. Wetzel stated that he did not have any record of a witness being called for Mr. Young's hearing. Ms. Aldridge further explained that she reviewed the disciplinary report "looking for anything regarding a witness being called and could not find anything." Exhibit 2 is an e-mail from Lt. Wetzel to Ms. Barker advising that a search of his own records did not yield "a copy of any sort of request from inmate Young requesting Officer Miller as a witness." Lt. Wetzel independently reviewed the disciplinary report and was also unable to find any record of such a request being made. In addition, Lt. Wetzel reviewed the audio recording of Mr. Young's hearing. During the hearing Lt. Bishop "asked both [Mr. Young] and the legal [aide] if there was anything that they would like to add or statements they'd like to make for the record, which gave [Mr. Young] the opportunity to state that he wished to call Officer Miller as a witness," or that he requested in writing to call him as a witness, or anything of that nature. However, at no point during the hearing did Mr. Young make such a statement or make any reference to having called any witnesses. Lastly, Lt. Wetzel explained that he reviewed the scanned copies of Mr. Young's March 16, 2015, and March 30, 2015, appeals, neither of which contains any mention of having been "denied any witness, requesting Officer Miller as a witness, or even requesting any witnesses for the hearing, the investigation, or for the sake of the appeal."
Exhibit 3 is a memorandum directed to Records Supervisor Jodi Williams by Captain Jeannette Sisco, advising that she was the Adjustment Committee Lieutenant "around October 2009 on and off [until] 2013." Captain Sisco advised that while acting in that capacity she received any requests from inmates "to add witnesses, get a copy of their write up, etc." and she "always made a point to save/scan the requisition form that the inmate" gave to her so there was a record of any such request. Exhibit 4 is a memorandum directed to Ms. Williams by Deputy Warden James Coyne advising that he did not receive a letter from any inmate requesting witnesses for an Adjustment Committee Hearing when he served as the Adjustment Committee Chairperson at Roederer Correctional Complex but any such request would have been filed "with the rest of the disciplinary report once the hearing was completed." Exhibit 5 is a memorandum to "Whom it may concern" from Captain Patrick Kessinger explaining that after the investigation is finished and the disciplinary report has been referred to the Adjustment Committee for a hearing, "the inmate may request in writing, prior to the adjustment committee hearing any additional witness [on] his behalf but he must do so within 24 hours." Captain Kessinger advised that he was the "back up" for the Adjustment Committee for the past three years and he did not receive any written requests for additional witnesses to appear within the required 24 hour time period.
By letter dated April 4, 2016, Mr. Young argued that none of the exhibits outlined above "outweigh my evidence" and further asserted that KSR "avoided the question" of whether Lt. Bishop improperly destroyed public records. In his view, Exhibit 3 confirms that Lt. Bishop should have scanned his written request into KOMS. Even assuming that statement is accurate, Mr. Young's argument is premised on the assumption that conclusive proof has been submitted from which to conclusively determine that such a request was ever made. In reality the record on appeal consists of conflicting statements regarding the nonexistence of the requested forms. Mr. Young further contended that KSR "is attempting to mislead" this office with Exhibit 4 because requests to add witnesses are directed to the Adjustment Hearing Officer rather than the Deputy Warden. However, the Deputy Warden did not indicate that he did not receive any such requests in his capacity as Deputy Warden, but specifically advised that he did not receive any such requests while serving as "the Adjustment Committee Chairperson."
This office has no basis upon which to question the veracity of either party. However, in the absence of any objective proof that Mr. Young not only submitted the forms currently in dispute, but that such forms currently exist in the possession of KSR, this office also has no basis upon which to conclude that KSR violated the Open Records Act in denying his request, particularly since the weight of the evidence appears to validate its position that no such forms exist. KSR advised Mr. Young in a timely written response that no responsive forms exist, following a reasonable search, and subsequently confirmed that KSR never possessed any responsive forms. 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. KRS 61.880(2)(a) narrowly defines our scope of review in resolving disputes arising under the Open Records Act. "[I]t is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. The Attorney General "is not equipped to resolve [a] factual dispute [when presented with conflicting factual narratives]." Id.
A public agency such as KSR cannot provide a requester with access to nonexistent records or those 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 a claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 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" ); 12-ORD-195. 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.
When, as in this case, a public agency has denied that any responsive public records exist, after making "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 2 and there is no legal authority mandating creation of such records, nor does the record on appeal contain objective proof that such records exist, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"). The denial by KSR is affirmed.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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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