Request By:
Kurt Lowe, # 284794
Vanessa Dortch
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Green River Correctional Complex (GRCC) responded in accordance with the Open Records Act to a request for records from an inmate. We find that, although requester did not perfect his appeal, GRCC acted in accordance with the Open Records Act in response to the request for records by conducting a search for the alleged records, providing the responsive record it located, and notifying the requester of the results of the search.
On February 6, 2017, Kurt Lowe, an inmate at GRCC, filed an open records appeal to GRCC in support of his claim that a box of his "legal papers" was missing from the GRCC property room. Mr. Lowe submitted a request for logs maintained by the GRCC property room from August 2, 2016, to February 6, 2017, for a box of property he purportedly stored in the property room on August 2, 2016. He also requested "any/all CD Rom's (legal property) being held by the legal office for Kurt J. Lowe # 284794."
In her response to Mr. Lowe's request, Ms. Dortch, staff member at GRCC, first addressed the issue of the CD-ROM's by stating that "[p]er GRCC Lib[rarian], the legal office is not holding any CD Rom's (legal property) of I/M Lowe's # 284794." Regarding the request for the log of Mr. Lowe's box of legal papers, she stated "Property form sent for inspection. " The form that she referenced, titled "Stored Inmate Property Log" showed two dates, December 6, 2016, and January 31, 2017, and the location of the property as "(A) Top Shelf" for both entries. Both entries had the name of Sgt Harold Garrett and Kurt Lowe. Mr. Lowe's appeal asserts that "the log sheet that existed back on August 2nd 2016 was 'non-existent.' [ sic ]"
Oran S. McFarlan, III, attorney, Justice & Public Safety Cabinet, responded to Mr. Lowe's appeal, by letter dated March 2, 2017. Mr. McFarlan stated that, pursuant to KRS 197.025(7), GRCC had five calendar days, excepting Saturdays, Sundays and legal holidays, to respond to the requests, and that "a timely response was sent by GRCC staff member Vanessa Dortch on February 14, 2017." However, we note that Ms. Dortch's response was late by one day and thus constituted a procedural violation of KRS 61.880(1).
Mr. McFarlan observed discrepancies between the copy of the open records request retained by GRCC and the copy provided in Mr. Lowe's appeal. He noted that the signatures of Mr. Lowe are different between the two copies, that there is no "received" stamp on the copy Mr. Lowe provided, that there is a notation "#5 of 5" on each copy, but in different locations, and a typographical error in line 1 of the copy provided by Mr. Lowe ("GRCC Prop1/2erty room"). These and other discrepancies reflect that Mr. Lowe, in filing his appeal, did not provide a copy of the original request he made to GRCC.
KRS 61.880(2)(a) outlines the procedural requirements for submitting an Open Records Appeal. In relevant part, KRS 61.880(2)(a) 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. . . .
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. See 40 KAR 1:030, Section 1; 94-ORD-28. Because Mr. Lowe failed to provide this office with a copy of his original written request, his appeal is not perfected. Despite Mr. Lowe's failure to perfect his appeal, we find 1 that GRCC met its responsibilities under the Open Records Act in response to the original request for records.
In response to that original request, Ms. Dortch conducted a search for responsive property logs maintained by the GRCC Property Room, identified one as responsive, and made that document available to Mr. Lowe for inspection. Ms. Dortch was unable to locate a log with a date of August 2, 2016. Regarding the CD-ROM's that Mr. Lowe claimed were being held in the legal office, Ms. Dortch contacted the GRCC Librarian and was told that no such CD-ROMs were being held in the legal office for Mr. Lowe. GRCC met its duties under the Open Records Act by providing the one property log that was responsive to Mr. Lowe's request and advising him that the GRCC Librarian did not have the CD-ROMs that he requested from the legal office. This office has consistently held that a public agency cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 07-ORD-190. 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; 04-ORD-205. A public agency's response violates KRS 61.880(1) , when it fails to advise the requesting party whether the requested records exist, with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist and explaining why, following a reasonable search. 04-ORD-205, p. 4; 12-ORD-056.
Because Ms. Dortch conducted a reasonable search for the requested records and confirmed to Mr. Lowe that no other responsive records exist, we find no error in GRCC's disposition of Mr. Lowe's request. 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 agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 14-ORD-107; 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"). In the case of the records requested by Mr. Lowe, there is no independent support for Mr. Lowe's claim that other records were ever created or possessed by GRCC. On this set of facts, we are unable to find a violation of the Open Records Act in GRCC's disposition of Mr. Lowe's request for records.
A party aggrieved by this decision may appeal it 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 should not be named as a party in that action or in any subsequent proceeding.
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