Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Chris Hawkins initiated this appeal by letter dated September 25, 2016, challenging the disposition by the Luther Luckett Correctional Complex ("LLCC") of his September 22, 2016, request for "documentation from Restricted Housing Unit . . . reflecting urine test reflecting that I did not have any illicit drugs in my body on 9-16-16 or 9-17-16." Offender Records Specialist Heather McManis advised on September 23, 2016, that she was providing five pages of responsive documents for a total charge of 50 (fifty) cents. On appeal Mr. Hawkins noted that he was provided with "urine test results reflecting a positive result on 9-6-16 ; a different result and different date." (Original emphasis.) Mr. Hawkins further observed that he requested one copy of each responsive document but received two copies of the "Internal Chain of Custody Summary."
Upon receiving notification of Mr. Hawkins' appeal from this office, Staff Attorney Oran S. McFarlan, Justice and Public Safety Cabinet, responded on behalf of LLCC. Mr. McFarlan advised that the September 6, 2016, "drug test documents were the only ones identified as possibly responsive to Mr. Hawkins' request." Attached to Mr. McFarlan's October 6, 2016, appeal response was a copy of an e-mail from Ms. McManis, also dated October 6, 2016, in which Ms. McManis advised that she had just spoken with Internal Affairs "and there was just a field test performed on 9/17 date and it was negative." Ms. McManis also confirmed that "there are no test results to give when the stick tests are performed in house. There was no drug test performed on 9/16." 1 LLCC agreed to issue a refund to Mr. Hawkins' inmate account in the amount of 10 (ten) cents. Because LLCC cannot provide Mr. Hawkins with documentation of a field drug test, Mr. McFarlan advised, LLCC did not violate the Open Records Act. LLCC referenced a line of decisions by this office recognizing that a public agency cannot provide a requester with access to nonexistent records in support of its position. Based upon the following, this office finds the agency's initial response deficient but affirms the agency's ultimate disposition of Mr. Hawkins' request based on the nonexistence of the records being sought.
KSR is not required to produce nonexistent records nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (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 [the 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" ); 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 LLCC to produce the records because no such records were created 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.
The right to inspect public records only attaches 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. 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; 10-ORD-215. The mandatory language of KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996); see KRS 61.880(2)(c). Accordingly, this office has consistently recognized that a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-145.
LLCC did not initially advise Mr. Hawkins that no drug test was performed on September 16, 2016, nor did LLCC explain that no document reflecting drug test results existed or would have been created on September 17, 2016, because a field test was performed. Insofar as LLCC failed to affirmatively indicate whether any responsive documents existed, which suggests a failure by LLCC to conduct a reasonable search until receipt of Mr. Hawkins' appeal, it failed to fully discharge its duty under the Open Records Act. See 10-ORD-215; 15-ORD-151. However, LLCC ultimately discharged its duty under the Act in conducting a reasonable search, notifying Mr. Hawkins that no responsive documents existed, and providing a credible explanation for the nonexistence of such documents; nothing else is required. See 15-ORD-046. The final disposition of Mr. Hawkins' request 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 must 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 In response to a request for clarification of Ms. McManis' response, Mr. McFarlan explained that a "stick" or "field" test "is analogous to a standard at home pregnancy test." Mr. McFarlan advised:
These types of tests do not generate a report like the samples that are sent to a lab. If the stick/field test is negative, the institution does not keep the results. However, if it is positive, a sample would then be sent off to an outside testing facility, which would require that a chain of command document be generated and a subsequent report of the results would be provided.
Here, the in-house field/stick test was negative and thus the sample was not sent to a lab and no report was generated.