Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Leonel Martinez initiated this appeal by letter dated March 23, 2016, challenging the disposition by the Kentucky State Penitentiary ("KSP") of his March 17, 2016, request for the records documenting his "legal mail" that was "mailed out" in January, February, and March 2016. In a timely written response, Offender Information Supervisor Amy Roberts advised Mr. Martinez that his request for the "Legal Mail log" was granted with certain redactions made pursuant to KRS 197.025(1), as the "redacted information may contain opinions and/or preliminary recommendations and some of the information, if disclosed, could result in adverse consequences and/or jeopardize [the] safety or security of staff, other inmates, the institution or potential or current investigations." On appeal Mr. Martinez advised that KSP deducted $ 1.70 for material that he did not request as the log provided only showed incoming mail.
Upon receiving notification of Mr. Martinez's appeal from this office, Staff Attorney Oran S. McFarlan, III, Justice and Public Safety Cabinet, responded on behalf of KSP. Mr. McFarlan attached the April 1, 2016, affidavit of Ms. Roberts attesting that she now understands that Mr. Martinez "was only seeking copies of an outgoing legal mail log. " Mr. Roberts advised that the mail room keeps legal mail log books for all of the cell houses at KSP. "When I received Mr. Martinez's request for a copy of the legal mail log book for 3 cell house (where he was housed in January, February, and March 2016)," Ms. Roberts continued, I had copies made of the pages that I believed were responsive to his request and redacted certain information under the security exception. However, upon receiving notification of Mr. Martinez's appeal, Ms. Roberts "called the mail room and found out that the legal mail log book only documents incoming legal mail and not outgoing legal mail. Simply put, the KSP mail room and/or 3 cell house does not maintain a legal mail log book that documents outgoing legal mail. " As such, Ms. Roberts acknowledged that her initial response "should have been that the requested documents do not exist." Ms. Roberts indicated that she would notify inmate accounts to credit Mr. Martinez's account in the amount of $ 1.70. 1 Citing prior decisions of this office, KSP asserted that a public agency cannot provide a requester with access to nonexistent records nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist. Based upon the following, this office affirms the agency's final disposition of Mr. Martinez's request notwithstanding deficiencies in the agency's initial response.
KSP was correct in asserting that a public agency cannot produce that which it does not have nor is a public agency expected to "prove a negative" in order to refute an unsubstantiated claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (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 log 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; 13-ORD-035.
The Attorney General has consistently recognized that 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. As indicated, however, it was incumbent on the agency to advise Mr. Martinez of the log's nonexistence in a timely manner using "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 (citation omitted). The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145. Insofar as KSP initially failed to affirmatively indicate that logs documenting the outgoing mail of inmates are not created, its response was deficient. See 10-ORD-215; 14-ORD-045. However, KSP did not substantively violate the Open Records Act in ultimately denying the request given that no such log exists.
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. Nor is the Attorney General's Office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1. Rather, KRS 61.880(2)(a) narrowly defines our scope of review. 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, 2 the Act only regulates access to existing records that fall within the parameters of KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 07-ORD-218.
Records Series 05456 on the Justice and Public Safety Cabinet Records Retention Schedule governs the retention and disposition of "Inmate Legal Correspondence Logs, " which document "all legal correspondence sent and received by inmates [.]" Had KSP "exercised its prerogative in favor of creation of" an outgoing mail log, that log would be subject to two-year period of retention. 07-ORD-218, p. 5. However, KSP has apparently not elected to create such a log. Accordingly, the current dispute fundamentally amounts to "a 'records creation,' as opposed to a 'records access,' issue." 99-ORD-140, p. 5. As the Attorney General has long recognized:
It is abundantly clear that the shared intent contemplated by the legislature in enacting KRS 61.8715 is confined to records management and maintenance. There is no reference in [KRS 61.8715, or anywhere else in the Open Records Act] to records creation. We decline the invitation to invade the prerogative of public agencies in determining, "in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives," what records they must create. KRS 171.640. We therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act.
95-ORD-48, p. 2. Nor, this office "is obliged to add," is the Attorney General empowered to declare that a public agency's "failure to create a record constitutes a violation of the Open Records Act. " 99-ORD-140, pp. 5-6; 15-ORD-004 (Kentucky State Reformatory did not maintain a list containing the names of staff members who rejected his mail and the Act did not require KSR to create such a record). Accordingly, this office has no basis upon which to find that KSP violated the Open Records Act in denying Mr. Martinez's request for the nonexistent log with the exception of the deficiency in the agency's initial response noted above.
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.
Footnotes
Footnotes