Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory (hereinafter "KSR") violated the Open Records Act by denying part of Inmate Pasha's Open Records request on the grounds that a requested investigative report was not generated after a KSR Internal Affairs officer met with a visitor. In accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005), and 07-ORD-190, this office affirms the denial of Inmate Pasha's request as to nonexistent records and those not in the possession of the agency.
Inmate Uriah M. Pasha appealed the Kentucky State Reformatory's denial part of his November 7, 2016 Open Records request. Inmate Pasha requested, among other things, "[a] copy of the investigation report concerning Uriah Pasha 09028's visitor Darla Ray promoting contraband Monday October 31, 2016 into the institution, and no contraband having been found [sic]." KSR received Inmate Pasha's request on November 9, 2016, and timely responded on November 15, 2016, per KRS 197.025(7). 1
In its November 9, 2016, response to Inmate Pasha, KSR states that "[t]here was not an investigation report completed regarding [Darla Ray]'s visit and her termination of the visit. I was informed that it was her decision to end her visit." KSR stated that its denial was based on OAG 82-234, stating that KSR was "not required to create a document(s) and/or record(s) which do not already exist..."
On November 17, 2016, Inmate Pasha appealed KSR's denial of the above-referenced, November 7, 2016, Open Records request, claiming that KSR "...questioned his visitor from 1:00 PM to 2:30 PM, and claims no report was made." Inmate Pasha further claims "[a]t this institution everytime the Internal Affairs Officers question anyone there is a report made [sic]."
KSR contends that it satisfied part of the request by providing records. In response to Inmate Pasha's request for the above-referenced investigation report concerning Inmate Pasha's visitor, KSR claims that it informed Inmate Pasha that no report was completed regarding the visit and the termination of the visit.
In support of its contention that no investigative report was generated, KSR provided this office with the Affidavit of Markie Pyles, a Correctional Officer employed with Kentucky Department of Corrections (hereinafter "DOC") at KSR, who spoke with Inmate Pasha's visitor.
Mr. Pyles provided the following sworn statement:
"...Part of my duties include interviewing an inmate visitor if a need arises. I spoke with Darla Ray on October 31, 2016. I did not prepare a report concerning the conversation with her. I was not required to prepare a report concerning the conversation. Ms. Ray determined that she would end her visit and leave institutional grounds."
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). 16-ORD-229, p. 1; see also , 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 KSR 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." 16-ORD-229, p. 1 citing 01-ORD-38, p. 9; see also , 09-ORD-019.
In the instant case, KSR informed Inmate Pasha that there was not an investigation report completed regarding Ms. Ray's visit and her termination of the visit. Having reviewed Kentucky Corrections Policies and Procedures 3.23(J), governing when Internal Affairs officers are required to develop a formal case file reveals that the creation of such investigative files is only mandated "where criminal charges and significant employee disciplinary action appears imminent." This case involves and allegations that an Internal Affairs Officer only spoke to Inmate Pasha's visitor. Inmate Pasha did not allege any facts that would support the requirement that that Internal Affairs create a formal case file. Further, the Affidavit of Markie Pyles stated that no such case file was created, nor was Officer Pyles required to create an investigative file.
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. " 16-ORD-229, p. 2 citing 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." 16-ORD-229, p. 2 citing 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. 16-ORD-229, p. 2 citing 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. 16-ORD-229, p. 2; 04-ORD-205; 99-ORD-98; 09-ORD-145.
In the instant appeal, KSR affirmatively indicated in its November 15, 2016, response to Inmate Pasha's Open Records request that no investigative report was generated regarding Ms. Ray's visit. Despite Inmate Pasha's later claim that investigative reports are always generated when a KSR Internal Affairs officer questions anyone, 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). As Inmate Pasha has cited no law or facts importing the existence of an investigate report, KSR's denial was proper.
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.
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