Request By:
Leonel Martinez, # 216925
Teresa Peters
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Leonel Martinez initiated this appeal by letter dated April 10, 2017, challenging the denial by the Kentucky State Penitentiary ("KSP") of his April 3, 2017, request for a copy of a letter sent to his sister and a copy of the postal tracking number for that letter. For the reasons set forth below, we find that KSP did not violate the Open Records Act.
On April 3, 2017, Mr. Martinez requested "a copy of a letter that was rejected on March 7, 2017" 1 and a "copy of the tracking number. . ." His request stated that the letter was mailed on March 22, 2017, but that on April 2, 2017, he "was told by [his] sister that she still [had] not received it." A timely written response denying Mr. Martinez's open records request was issued on April 5, 2017, by Teresa Peters, KSP Records. Ms. Peters stated that she spoke to the mailroom staff at KSP and was advised that Mr. Martinez did not pay to have the letter tracked, and that KSP does "not track inmate mail unless the inmate specifies for it to be tracked and pays the proper postage for it to be tracked. Therefore, I am not able to provide you with a tracking number as it does not exist. In reference to a copy of the letter that you sent out to your sister [,] a copy of that letter was not retained by the institution and therefore does not [exist]."
Upon receiving notification of Mr. Martinez's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, affirmed that KSP "adequately explained why the records did not exist in its response. A copy of the letter was not made and the mail was not tracked, so no records were created." 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. KSP provided a credible written explanation for the nonexistence of the requested records, and 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 the 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. KSP did not violate the Open Records Act in denying Mr. Martinez's request for records that it does not possess.
Ms. Barker also addressed other allegations made by Mr. Martinez in his appeal in which he claims KSP has violated his constitutional rights under the 1st and 14th amendments to the Constitution. Ms. Barker correctly observed:
Much of Inmate Martinez' letter concerns issues other than the provision of records pursuant to an open records request. The Attorney General's Office has acknowledged that it is not the proper forum for and cannot decide issues other than violations of the Open Records Act for appeals initiated under KRS 61.880(1). 14-ORD-083; 14-ORD-049, nt. 2; 12-ORD-110; 08ORD-142, p. 6; 99-ORD-121, p. 17.
We concur with Ms. Barker's statements and cited decisions that this office does not have jurisdiction to consider Mr. Martinez's complaints of constitutional violations in the context of an open records appeal.
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.
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