Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Sandra Riley appeals the alleged failure of the Kentucky Department of Corrections (DOC) to respond to an open records request for a copy of correspondence that she claims she sent to the Commissioner of the Department of Corrections, dated October 13, 2016. She also requested a copy of the Commissioner's response to her correspondence. We are unable to resolve the factual dispute regarding receipt of the request but find no error by the Department of Corrections in its disposition of the request when it was notified of that request in this appeal.
Upon notice of this appeal, the Department of Corrections responded to this office that it did not receive the request until it received notice of Ms. Riley's appeal. In its response to the appeal, the Department of Corrections provided a letter from Brandi Hawkins, Offender Information Services, DOC, dated November 29, 2016, to Ms. Riley. Ms. Hawkins' letter explained that she had searched DOC records but found no record responsive to Ms. Riley's request.
KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
This duty is triggered only "upon receipt of a request for a record." Ms. Riley asserts that her correspondence was dated October 13, 2016, but did not provide information regarding the date she sent the correspondence. Ms. Hawkins' response to Ms. Riley was made within the five business days allowed by KRS 197.025(7) and was therefore timely. The Department of Corrections, according to Ms. Hawkins' letter, was not aware of Ms. Riley's request until November 23, 2016, when it received the appeal notice from the Attorney General's Office. In the absence of conclusive proof that the Department of Corrections received the request, such as a certified mail receipt and proof of service confirming mail delivery or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute between these parties. 02-ORD-01 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency failed to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet).
The Department of Corrections fulfilled its obligations under the Open Records Act by conducting a search for the correspondence upon notification of the request and then notifying Ms. Riley that there were no responsive records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). We cannot find that the Department of Corrections violated the Kentucky Open Records Act in its disposition of Ms. Riley's request.
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 must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.