Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
James Hightower initiated this appeal by letter dated May 13, 2016, and received in the Office of the Attorney General on May 18, 2016, challenging the disposition by the Kentucky State Reformatory ("KSR") of his April 27, 2016, request for "[o]ne copy of any Protective Custody release form from September 2014." 1 In a timely written response dated April 29, 2016, Offender Information Specialist Connor Jeffries advised Mr. Hightower that he was "not required to create a document(s) and/or record(s) which do not already exist. . . . There are no other Protective custody forms in your institutional file for the year 2014 except for February of 2014." Mr. Jeffries noted that he advised Mr. Hightower of this fact in response to a previous request dated April 15, 2016, (not in dispute) asking for any such forms dated July or September 2014, and indicated that Mr. Hightower should resubmit his request if he wished to receive a copy of the February 2014 form. On appeal Mr. Hightower provided a copy of a September 11, 2014, Transfer Request, which stated that a "Protective Custody release can be found in Scanned Documents." Mr. Hightower apparently presumed that a "Protective Custody Release Form" was also generated and/or entered into KOMS in September 2014 based on the quoted statement. He requested that KSR provide that form or "specifically state" that it does not exist within his file.
Upon receiving notification of Mr. Hightower's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker correctly observed that KSR cannot provide Mr. Hightower with a nonexistent record. A review by KSR staff confirmed that no such form was generated or entered into the Kentucky Offender Management System (KOMS) in September 2014. Attached to Ms. Barker's appeal response was a copy of a May 27, 2016, e-mail directed to her by Mr. Jeffries advising that upon conducting another search of KOMS he located a "PC release form that was scanned in on [sic] August of 2014 under 'Miscellaneous (Classification)' for July of 2014, which could explain why I overlooked that one previously." Mr. Jeffries confirmed that no form was located from September 2014. 2 Citing prior decisions of this office, Ms. Barker asserted that a public agency such as KSR cannot provide that which it does not have or which does not exist; a public agency discharges its duty under the Open Records Act in affirmatively so indicating. KSR is not required to "prove a negative," Ms. Barker argued, in justifying the denial of a request for a nonexistent record. Based upon the following, this office affirms the agency's denial of Mr. Hightower's April 27 request.
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; 04-ORD-205. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records being sought exist, but discharges its duty under the Act in affirmatively indicating that certain records do not exist following a reasonable search, and explaining why if appropriate, just as KSR ultimately did here. See 99-ORD-98; 12-ORD-056. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore no record was created); 99-ORD-98; 09-ORD-145. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, and the Attorney General has applied a higher standard of review to denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
Both initially and on appeal, KSR advised Mr. Hightower that no Protective Custody Release Form exists from September 2014 after conducting a proper search of KOMS where that record would be maintained. Although KSR ultimately located a form that was generated in July 2014 (apparently entered in KOMS in August 2014, albeit under "Miscellaneous"), which might very well be the form that was referenced in the Transfer Request of record, the fact remains that a July 2014 form is not responsive to Mr. Hightower's request for a September 2014 form. 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. This office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3; 10-ORD-187 (requester's assumption that agency would create and maintain the report in dispute was entirely reasonable on the facts presented but Open Records Act does not "impose a duty on a public agency to create specific records" and the agency could not produce a nonexistent record nor was further inquiry warranted absent objective proof contrary to its position); 12-ORD-087.
KSR is not 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); 07-ORD-188. However, in order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited or independently located here. See 09-ORD-129 (agency did not violate Act in denying request for nonexistent complaint and investigative file as no such records were created or existed in the possession of agency nor was evidence to contrary was presented on appeal "beyond mere assertions"); 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 existence of same could be presumed) ; 12-ORD-037; 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.
Because KSR made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no responsive form was located. 05-ORD-109, p. 3; 01-ORD-38; 12-ORD-030. Notwithstanding the September 2014 Transfer Request on which a "Protective Custody release" is referenced with no date specified, this office has no basis upon which to find that KSR violated the Open Records Act in denying his request for a nonexistent record. See 12-ORD-065 (assumption that letter existed was reasonable in light of public official's reference to letter in a public forum, but requester's assumption, however logical, did not constitute proof to refute agency's position that no such letter was ever created); 14-ORD-004; 15-ORD-206. The agency's denial of Mr. Hightower's request is affirmed.
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.
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