Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
James Hightower initiated this appeal by letter dated October 24, 2016, challenging the denial by the Kentucky State Reformatory ("KSR") of his October 5, 2016, request for a "copy of any transfer request form or Department of Corrections transfer authorization form from July or August 2014." In a timely written response, Offender Information Specialist Kathy Garrison advised Mr. Hightower that his request was denied. Ms. Garrison cited KRS 61.878(1)(i) 1 and KRS 197.025(1) 2 as the authorities for the denial. In citing KRS 197.025(1), Ms. Garrison explained that as "this document was submitted for a possible upcoming/pending transfer, this is deemed as a security concern." Ms. Garrison 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, at 4; see also 10-ORD-005; 03-ORD-190."
Upon receiving notification of Mr. Hightower's appeal from this office, Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Stevens advised that following receipt of the appeal, "further inquiries were made and a document was located that is not considered preliminary. A transfer authorization form was located for September 2014 and made available to Mr. Hightower upon receipt of payment. ..There are no transfer records as sought by Mr. Hightower dated July/August 2014." Attached to Ms. Stevens' response was a sworn affidavit from Kathy Garrison that explained that the request was denied in error. Ms. Garrison stated that a transfer request for the dates listed does not exist but that she had located a Transfer Request and Transfer Authorization for September 2014 and that those documents could be provided upon receipt of a new Open Records request and a money transfer authorization. Ms. Stevens' response requested this office to find that the request is moot "[s]ince the record has been provided to the requester. .." Ms. Stevens cited to 40 KAR 1:030, Section 6, which provides: "Moot Complaints. If the 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."
This office finds that the request is not moot. In Mr. Hightower's appeal, he provided the three pages of the Transfer Request and Transfer Authorization form that Ms. Garrison found in her search of Mr. Hightower's files. It would be unreasonable for Mr. Hightower to request, in his appeal, the very records that he provided in that appeal. Mr. Hightower's request was for the Transfer Form or Transfer Authorization form from July or August, 2014, and Ms. Garrison responded that her review of the requester's file resulted in a determination that "a transfer authorization does not exist for the dates listed." Although Ms. Garrison did not specifically so state, it is implied in her response that she also did not find a Transfer Request form from July or August, 2014.
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 Transfer Form or Transfer Authorization Form 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 Transfer Request forms or Transfer Authorization forms existed, it failed to fully discharge its duty under the Open Records Act. In responding to Mr. Hightower's request, KSR did not 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. Hightower that no Transfer Request Forms or Transfer Authorization Forms for July or August 2014 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.
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