Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Kentucky Open Records Act in denying several requests made by Robert McKinney in January 2017. In the first two (undated) requests, Mr. McKinney asked "to review taped hearing in DR hearing of BCC-2016-01221 and taped phone calls listed as evidence," and "to review the case numbers and date served on DOC" for the writ of habeas corpus that he filed in Boyle County, respectively. (Original emphasis.) By request dated January 10, 2017, Mr. McKinney sought "[a]ll e-mails from the office of and to Chad Hockinsmith in the months of June and July 2016" containing his name. Attached to Mr. McKinney's January 26, 2017, appeal were copies of all three written requests; however, no response to either of the first two was attached except for a copy of a notation that appeared on both request forms and indicated, "Need CPOs please complete and resubmit." Mr. McKinney did include a copy of the January 12, 2017, response by NTC to his January 10, 2017, request. NTC Offender Information Specialist Kelly Napier advised Mr. McKinney that his request for the aforementioned e-mails could not be honored "as they are not a part of your institutional file. After a thorough review of your institutional file, I was unable to locate the document you requested with the dates you provided. . . . There is no record in your file that corresponds with the information you provided. . . ." Accordingly, NTC denied the request as it "cannot provide documents that do not exist[.]"
Upon receiving notification of Mr. McKinney's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. Ms. Barker initially noted that Mr. McKinney's first request is not dated, but was "stamped as received by the NTC Business Office on January 9." Mr. McKinney included "a sticky note about CPOs," Ms. Barker correctly observed, but failed to attach the agency's January 12, 2017, written response. In addition, the request does not appear to have been sent to the Open Records Coordinator in accordance with CPP 6.1, as that person is located in the Offender Information Office. Likewise, Mr. McKinney's second request does not contain a visible date nor is any written response attached other than a copy of the sticky note regarding CPOs. In addressing Mr. McKinney's third request, dated January 10, 2017, Ms. Barker correctly observed that it was stamped as received on January 11, 2017, by the NTC Offender Information Office, and NTC issued a timely written response on January 12, 2017, per KRS 197.025(7), a copy of which Mr. McKinney included on appeal. Ms. Barker advised that NTC "correctly explained that that the requested emails were not located in his inmate record in [the Kentucky Offender Management System, "KOMS,"] but also correctly acknowledged that NTC failed to direct Mr. McKinney to Blackburn Correctional Complex ("BCC"), where Chad Hockinsmith was employed, for any existing responsive e-mails per KRS 61.872(4); however, NTC corrected this deficiency on appeal.
Quoting KRS 61.880(2)(a) and 40 KAR 1:030, Section 1, and citing prior Open Records Decisions, Ms. Barker asserted on behalf of NTC that Mr. McKinney failed to perfect his appeal relative to both of his first two requests. Ms. Barker provided this office with copies of two additional responses dated January 12, 2017, which addressed the first two requests. Even if Mr. McKinney had provided the necessary documentation, however, Ms. Barker explained that NTC does not possess any records matching the descriptions provided in either of the first two requests. BCC, rather than NTC, would maintain the recording of a disciplinary hearing conducted at BCC, Ms. Barker explained; likewise, the court establishes the case number and maintains the service date for a writ, and NTC therefore would not possess any records containing that information. Based upon the following, this office affirms the denial by NTC of Mr. McKinney's January 10, 2017, request; his failure to comply with KRS 61.880(2)(a) prevents the Attorney General from rendering a decision regarding the merits of the agency's other denials.
KRS 61.880(2)(a) outlines the procedural requirements for submitting an Open Records Appeal. That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." Insofar as Mr. McKinney did not provide this office with copies of the agency's written responses to his first two requests, NTC was correct in arguing that his appeal was incomplete.
Mr. McKinney is an inmate confined in a penal facility, and KRS 197.025(3) therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." (Emphasis added.) While this provision certainly narrows the window of opportunity during which an inmate may appeal the disposition of his request by DOC or a correctional facility such as NTC, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. Nor does it exempt Mr. McKinney from the statutory requirement of providing this office with a copy of a timely written response sent by the agency in order to pursue an Open Records Appeal. See 15-ORD-137. Even assuming that Mr. McKinney had fully complied with KRS 61.880(2)(a) relative to his first two requests, NTC ultimately advised Mr. McKinney that neither the recording of his disciplinary hearing nor any record containing the "case number and date served on DOC" exists in the possession or custody of NTC and explained the reasons why. Further, NTC correctly noted that a public agency cannot produce a nonexistent record, or that which it does not have, for inspection or copying. See 14-ORD-245.
Likewise, NTC advised Mr. McKinney that no e-mails matching the description provided exist in the possession or control of the agency. The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 12-ORD-087; 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"); 12-ORD-195.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 1 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Simply put, Kentucky's Open Records Act applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120. When, as in this case, a public agency denies that any responsive documents exist in the agency's possession or control, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records exist, with the necessary implication being that a public agency discharges its duty under the Act in affirmatively indicating that certain records do not exist, and explaining why, as NTC did here. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122. The denial of Mr. McKinney's January 10, 2017, 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