Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Mark Williams initiated this appeal by letter dated April 4, 2016, challenging the denial by the Kentucky State Penitentiary ("KSP") of his March 21, 2016, request for "a copy of letter and envelope front & back that Internal Affairs say they have. DR KSP-2016-00440 and the [copies] of my handwriting samples they have. Also a copy of attached letter from [Tonya Gray] to Steven Ford. DR KSP-2016-00476." In a timely written response, KSP Offender Information Supervisor Amy Roberts advised Mr. Williams that his request was "denied because these are part of ongoing investigation (of an incidents [sic] that occurred on 2/11/2016 and 3/11/2016)," and the records are therefore preliminary. KSP cited KRS 61.878(1)(h) and (i) in support of its denial. On appeal Mr. Williams advised that a prison disciplinary report was issued on March 21, 2016, relating to KSP-2016-00440, indicating that KSP had received a letter "'that was returned to the prison for return to sender.'" The referenced letter and envelope were among the records that Mr. Williams requested on April 4. Mr. Williams asserted that Ms. Roberts' denial was incorrect as the investigation "was completed by Officer Samantha Paris as required by CPP 15.6 on 3/21/16."
Upon receiving notification of Mr. Williams' appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Barker advised that KSP engaged in a supplemental review of the records being sought upon receipt of Mr. Williams' appeal. 1 KSP then determined that the requested letter and envelope did not contain a specific reference to Mr. Williams. Citing prior decisions of this office, KSP argued that KRS 197.025(2) "in conjunction with KRS 61.878(1)(l) clearly shows that the Department of Corrections is not obligated to provide records when they do not contain a specific reference to the inmate" requester. 2 Ms. Barker also explained that KSP ultimately determined that a letter from staff member Tonya Gray to Deputy Warden Steven Ford was not created. Rather, Ms. Gray prepared an "occurrence report." 3 A public agency such as KSP cannot produce that which it does not have, Ms. Barker observed, nor is the agency required to "'prove a negative'" in order to refute an unsupported claim that a certain record exists when denying a request based on the nonexistence of the record. KSP cited numerous decisions of this office in support of this position.
Upon further review, KSP also determined that the requested handwriting sample was not protected from disclosure and therefore agreed to provide a copy to Mr. Williams upon receipt of payment. Accordingly, Ms. Barker correctly observed that Mr. Williams' appeal is moot as to said handwriting sample under 40 KAR 1:030, Section 6. 4 Notwithstanding the agency's initial failure to locate the requested handwriting sample and review it prior to denying access, pursuant to 40 KAR 1:030, Section 6, the Attorney General declines to engage in further discussion of any related issues.
As KSP correctly argued on appeal, this office has consistently recognized that a public agency cannot produce that which it does not have nor is a public 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 complainant. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 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); 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 ("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, in addressing the obligations of a public agency when denying access to public records based upon their nonexistence, this office has consistently 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); 12-ORD-162. 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; 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 10-ORD-215 (Kentucky State Penitentiary violated KRS 61.880(1) in failing to affirmatively indicate whether the requested correspondence existed until after the appeal was filed).
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," but a public agency discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145. It was "therefore incumbent on [KSP] to ascertain whether records exist[ed] that [were] responsive to [Mr. Williams'] request, to promptly advise him of [its] findings, and to release to him all existing [nonexempt] records identified in his request." 03-ORD-207, p. 3. Insofar as KSP initially failed to affirmatively indicate that a letter from Ms. Gray to Deputy Warden Ford was ever created, its response was deficient. See 09-ORD-145; 10-ORD-215; 14-ORD-107. KSP "was unable to discharge this duty because it failed to conduct any type of 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)." 14-ORD-045, p. 3. However, KSP ultimately discharged its duty under the Act in conducting a reasonable search, notifying Mr. Williams that no such letter existed, and explaining that an occurrence report submitted by Ms. Gray might actually be the record that he wished to request.
Although KSP initially denied Mr. Williams' request entirely on the bases of KRS 61.878(1)(h) and (i), upon receipt of this appeal KSP determined that the "letter and envelope front and back" relating to KSP-2016-00440 did not contain a specific reference to Mr. Williams and belatedly invoked KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) . The Attorney General has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like KSP to deny a request from any inmate unless the record(s) contains a specific reference to that inmate. See 03-ORD-074; 07-ORD-219; 10-ORD-136; 13-ORD-013. Because the responsive letter and envelope do not contain a specific reference to Mr. Williams, he is not entitled to access that record under KRS 197.025(2), notwithstanding his underlying concerns. Regardless of the hardship Mr. Williams 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 mandatory language of this provision; accordingly, KSP properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying that portion of his request. 99-ORD-161, p. 2; 15-ORD-220. Further discussion of KRS 61.878(1)(h) and (i) is therefore unwarranted.
Either party may appeal this decision 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
1 Ms. Barker enclosed an e-mail directed to her by Ms. Roberts on April 28, 2016, advising that she had "reviewed KOMS [Kentucky Offender Management System] and Disciplinary reports KSP 2016-440 and KSP 2016-476 are still under appeal with the Warden. The letter and the envelope that [are] being requested do not have any specific reference to Mark Williams." Ms. Roberts further indicated that a letter from Tonya Gray to Deputy Warden Steven Ford did not exist. However, Ms. Ford did submit an occurrence report "concerning threats made concerning Steve Ford." Finally, Ms. Roberts advised that the handwriting sample does contain Mark Williams' "name and number on it as well as the occurrence report."
2 KRS 61.878(1)(l) removes from application of the Open Records Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
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.
3 In the event that Mr. Williams decides to ask for the occurrence report in a subsequent request, KSP advised that said report "is part of the investigation for a disciplinary action which is on appeal to the warden of the institution. The warden is the final decision maker in the disciplinary process and the administrative adjudication is not complete until the appeal decision is made." Because the Warden is authorized to change the decision that was reached in the hearing, the disciplinary action remains preliminary. Inasmuch as the Warden has not made a final decision, KSP is currently unable to determine whether the report will be adopted, in whole or in part, as the basis of the agency's final action. Therefore, KSP maintained that the occurrence report is protected from disclosure under KRS 61.878(1)(i) and (j).
4 Pursuant to 40 KAR 1:030, Section 6, "[i]f requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 03-ORD-087; 04-ORD-046.