Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary (KSP) violated the Open Records Act in responding to Meldrum Harvey's request of June 12, 2016 for "each and every 'occurrence report' completed by KSP staff members in conjunction to my being locked up from visitation on 5/28/2016." We find that KSP ultimately discharged its duty under the Act in denying access to a nonexistent occurrence report but initially failed to affirmatively indicate to the requester that no such occurrence reports existed.
The request was submitted in writing on June 12, 2016, and on June 17, 2016, Teresa Peters, Offender Records, KSP, responded by stating "Please find enclosed one (1) page detention order. The disciplinary report completed in relation to this incident is preliminary and is therefor [ sic ] denied -- see memo." A memorandum, June 17, 2016, was attached to the response. The memorandum, also from Teresa Peters, stated "Your disciplinary report in reference to this incident is denied because they [ sic ] it is part of an ongoing investigation into this incident that occurred on 5/28/16, and is therefore preliminary. KRS 61.878(1)(i). Once this reports [ sic ] investigation has been completed you will be provided a copy prior to meeting the Adjustment Committee."
Mr. Harvey appealed the response from KSP by letter dated June 28, 2016. In his appeal to this Office, Mr. Harvey stated "I did not request a copy of the 'Detention Order' or 'Disciplinary Report' with this Open Records Request. What was requested was [ sic ] the 'Occurrence Reports' ..."
Upon receipt of this office's notification of the open records appeal, Oran S. McFarlan, III, Attorney, Justice and Public Safety Cabinet, responded on behalf of KSP. Attached to Mr. McFarlane's response was an affidavit of Teresa Peters, dated July 11, 2016. Ms. Peters' affidavit explained that she conducted a search of KSP records for documents that were responsive to Mr. Harvey's request and had provided him with a one page Detention Order, dated May 28, 2016, that discussed his placement in segregation on that day. "The only other responsive document that I located during my search was the related Disciplinary Report Form Part I, but an investigation into the allegations of misconduct in that document had yet to be completed and thus I denied him access to that document because it was still preliminary. The investigation into that Disciplinary Report Form Part I has now been completed and Mr. Harvey was provided with a copy on July 7, 2016." Ms. Peters further explained that she had spoken with KSP's Internal Affairs Office to determine if they had any responsive document, but they did not have any involvement in this incident. The affidavit further stated that there "are no other responsive occurrence reports, information reports, or extraordinary occurrence reports about the incident at issue."
Mr. McFarlan's letter reiterated that all documents responsive to Mr. Harvey's request had been provided to him and that there were no other responsive occurrence reports, information reports, or extraordinary occurrence reports about the incident at issue.
The requester's appeal correctly states that his request was specifically for "occurrence reports," and not for a "disciplinary report" or "detention order. " The initial responses provided by Ms. Peters, dated June 17, 2016, did not affirmatively state that no occurrence report(s) existed. The initial response by Ms. Peters failed to discharge KSP's duty to affirmatively state that there were no other responsive documents.
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. 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. When a record being sought does not exist, the agency should specifically so indicate. OAG 90-26, p. 4. As was the case in the appeal regarding 10-ORD-215, Kentucky State Penitentiary also violated KRS 61.880(1) in this appeal by failing to affirmatively indicate whether the requested correspondence existed until after the appeal was filed. It was therefore incumbent on KSP to ascertain whether records existed that were responsive to Mr. Harvey's request and, if there were none, to affirmatively so inform him.
Insofar as KSP initially failed to affirmatively indicate that no "occurrence reports" were in existence, its response was deficient. 16-ORD-104. However, KSP ultimately discharged its duty under the Act through Ms. Peters' affidavit which states that there are no other "responsive occurrence reports" about the incident at issue.
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to 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.