Request By:
Charlie Dorris, #185012
Kim Campbell
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Charlie Dorris initiated this appeal by letter dated March 23, 2017, challenging the denial by the Kentucky State Reformatory ("KSR") of his March 16, 2017, request for a copy of the "chain of custody and test results for urine sample taken by Sgt. John Grooms 10/24/16 at 9:16 a.m., which was sent directly to a Lab for urinalysis. " In a timely written response, Offender Information Specialist Kim Campbell advised Mr. Dorris that the "test sheet and results" were attached for the urinalysis; however, the "chain of custody form does not exist." Ms. Campbell asserted that a public agency such as KSR is "not required to create a document(s) and/or record(s) which do not already exist." On appeal Mr. Dorris claimed that "Chain of Custody forms are mandatory, and the agency is to maintain them for twenty years. It does not have to prove a negative but it does have to explain why it does not have the records that are to be maintained for twenty years." Based upon the following, this office affirms the denial of Mr. Dorris' request.
Upon receiving notification of Mr. Dorris' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, elaborated upon the position of KSR as follows:
In his letter of appeal[, Mr. Dorris] states that the record has to be maintained for twenty years, but provides no information to support his assertion. [Mr. Dorris] attaches the records provided to his appeal letter. The collection document at step 3 provides the only portion of the chain of custody for the urine sample that KSR possesses. The drug test report was negative. As explained by KSR staff, KSR did not receive the chain of custody for the negative report. (Affidavit of William Hollkamp attached as exh. 1) A chain of custody is not needed for a disciplinary action for a negative test, so it does not need to be provided to the institution.
Citing a line of prior decisions by this office, Ms. Barker correctly observed that a public agency cannot provide a requester with nonexistent records or that which it does not have. Ms. Barker also noted that a public agency such as KSR discharges its duty under the Open Records Act in affirmatively so indicating. A public agency is not required to "prove a negative" when denying a request based on the nonexistence of the records being sought, Ms. Barker asserted. 1
The Attorney General has consistently recognized that 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. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the possession of the agency. 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. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, at KRS 61.8715, 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).
However, in order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records if appropriate. See
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" ); 04-ORD-075; 12-ORD-195. This KSR ultimately did; the record on appeal is devoid of any evidence to refute its explanation. Compare 11-ORD-074 (holding that "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" and the agency failed to rebut the presumption). A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records being sought exist in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist, following a reasonable search, and explaining why if appropriate. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056. When, as in this case, a public agency denies that additional records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 14-ORD-077. KSR did not violate the Open Records Act in denying Mr. Dorris' request as to a chain of custody form that it does not possess.
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.
Footnotes
Footnotes
1 Captain William J. Hollkamp IV, KSR Urinalysis Coordinator, attested:There are two types of urinalysis done on inmates at KSR, random and reasonable suspicion tests. Reasonable suspicion samples are not field-tested. The sample collected is sealed in a container in front of the inmate so that it can be sent to the laboratory for further testing. The samples are placed in a locked cabinet in the Captain's Office until the Coordinator retrieves them and ships them to the lab. When the lab receives the sample, an email is sent to the Coordinator. When the lab finishes testing the sample, it sends the Coordinator an email to advise of the positive or negative result. If the results are negative, I enter the negative results in KOMS [Kentucky Offender Management System].Inmate Charlie Dorris # 185012 requested a chain of custody for a urine sample collected from him on 10-24-2016 due to reasonable suspicion.. . . All tests on the sample were negative. On 10-27-2016, Sterling Laboratories reported the negative result to the institution. For a positive test, KSR normally can access a chain of custody from the laboratory on the website as well. As this particular test was negative, the lab did not provide a chain of custody on its website. KSR does not possess a chain of custody generated by the laboratory.