Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this appeal by letter dated October 19, 2016, challenging the denial by the Kentucky State Reformatory ("KSR") of his October 13, 2016, request for a copy of the Extraordinary Occurrence Report ("EOR"), "any and all incident reports concerning the termination of inmate Uriah Pasha['s] visit on October 7, 2016," and a copy of the "report filed by Sgt. Johnson concerning Uriah Pasha['s] visitor Ms. Sandra Riley smoking in the KSR parking lot and/or on institutional grounds October 7, 2016." In a timely written response, Offender Information Specialist Kathy Garrison advised Mr. Pasha that "[a]ll [EORs] are being withheld under the security exemption contained in KRS 197.025, . . . incorporated into the Open Records Act through KRS 61.878(1)(l)." 1 Quoting the language of KRS 197.025(1), KSR observed that "[t]he Attorney General's Office has on prior occasions recognized that the discretion afforded the Commissioner in KRS 197.025(1) is broad, and that it will not 'substitute its judgment for that of the correctional facility or the Department of Corrections.' 08-ORD-148, p. 4; see also 10-ORD-005." 2 KSR cited 03-ORD-190 in support of the general proposition that incident reports may also be withheld on the basis of KRS 197.025(1).
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker advised that following receipt of the appeal, "KSR made a further search for records" and learned "that no EOR was created and that it did not exist." Attached to Ms. Barker's appeal response was a sworn affidavit from Deputy Warden of Security James B. Coyne attesting that "an EOR was not created and was not required by CPP 8.6 Extraordinary Occurrence Reports. Nothing in KSR's Institutional Policies and Procedures requires an EOR for smoking on state property." KSR staff initially believed the incident was the kind for which an EOR would be prepared, "but a review of CPP 8.6 indicates that it did not fit any of the incidents where one would be required to be prepared." According to Deputy Warden Coyne, "[a]n Incident Report is written when someone is caught smoking on state property and Officer Kimberly Clymer did this when Inmate Pasha's visitor was caught smoking on state property." Ms. Barker cited a number of prior decisions by this office recognizing that a public agency cannot provide nonexistent records for inspection or copying nor does a public agency have to "prove a negative" in order to refute an unsubstantiated claim that certain records exist.
In addition, Ms. Barker explained that prior to Mr. Pasha's appeal, KSR located two records to which it denied access initially on the basis of KRS 197.025(1) but additional review of those records "by higher level staff determined that providing the records would not be a security risk and they have been offered upon payment for the copies." Attached to Ms. Barker's appeal response was a copy of the November 4, 2016, supplemental response to of Ms. Garrison documenting that fact; likewise, Sergeant Jahrell Johnson confirmed in his November 4, 2016, affidavit that a "Visit Refusal or Termination Form dated October 7, 2016," was the only record that he created regarding the incident. 3 Ms. Barker advised that said Form was one of the records that KSR agreed to provide upon receipt of payment. With regard to records that KSR has agreed to provide upon receipt of payment for the copies, KSR correctly asserted that Mr. Pasha's appeal is moot per 40 KAR 1:030, Section 6. 4
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 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 EORs and incident reports because of their 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; 14-ORD-045.
As the Attorney General has consistently recognized, 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. 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. 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, 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; see 99-ORD-98; 09-ORD-145.
"[KSR] cannot produce for inspection a record[s] that never existed, but it is incumbent on the [agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2; 15-ORD-109 (KSR committed a procedural violation of the Act in failing to conduct an "appropriate search" for the document requested as it did not realize no responsive document existed, "but merely denied the request based on what a hypothetical [document] might contain"). On those occasions when the records do not exist, KSR's denial of the request "should be premised on the records' nonexistence and not an exception that has no application." Id.; 15-ORD-109 ("security exemption" did not excuse the failure by KSR "to locate any responsive records and assess their exempt or nonexempt status"); 15-ORD-178. Insofar as KSR initially failed to affirmatively indicate whether any responsive EORs or incident reports existed, it failed to fully discharge its duty under the Open Records Act. In responding to Mr. Pasha's request, KSR was unable to discharge this duty because it apparently failed to conduct a reasonable search to locate any responsive document(s) before denying the request. See 13-ORD-205; compare 15-ORD-167. However, KSR ultimately discharged its duty under the Act in conducting a reasonable search, notifying Mr. Pasha that no EORs or incident reports existed, and providing a credible explanation for the nonexistence of such documents; nothing else is required.
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 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 KRS 61.878(1)(l) excludes from application of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 Pursuant to KRS 197.025(1):
KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
3 Ms. Garrison advised that an EOR "does not exist in relation to this incident." However, KSR located a responsive "Incident Report and Visit Refusal or Termination Form," release of which the Deputy Warden of Security determined would not pose a security risk. Ms. Garrison further noted that Sergeant Johnson "only completed the form and did not prepare a separate report."
4 40 KAR 1:030, Section 6 provides: "Moot complaints. If 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."