Request By:
Leonel Martinez, # 216925
Melissa Edmonds
Teresa Peters
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Leonel Martinez initiated this appeal by letter dated April 6, 2017, challenging the denial by the Kentucky State Penitentiary ("KSP") of his April 5, 2017, request for two copies of the "recomendations [sic] name and address make [sic] by eye specialist on 2 2 2017 at Benton KY." In a timely written response, Administrative Assistant Melissa Edmonds, KSP Medical Department, advised Mr. Martinez that she provided him with copies of the "'Recommended name and address made by the eye specialist in Benton, KY on 02.02.2017" in response to his March 31, 2017, request. Citing 95-ORD-47, Ms. Edmonds denied Mr. Martinez's April 5 request because it was duplicative and the Attorney General has recognized that a public agency is not required to provide identical records a second time unless the requester explains the necessity of doing so. On appeal Mr. Martinez disputed that KSP had already provided him with records containing the requested information as the information was redacted, i.e. , "crushed of [sic] by" Ms. Edmonds, 1 from the records that he received in response to his March 31 request.
Upon receiving notification of Mr. Martinez's appeal from this office, Assistant General Counsel Amy V. Barker responded on behalf of KSP. Ms. Barker explained that because of the similarity between his March request and his April request KSP mistakenly believed that Mr. Martinez "was requesting the consultant records already provided." Once it received the clarification provided on appeal, KSP conducted a search. Ms. Barker advised that medical staff prepared a memorandum "at the time of the transport for the appointment that would be a responsive record. The memo was prepared to assist transport staff in delivering the inmate to the appointment and was not retained by medical staff. " KSP did not locate the memorandum during the search it conducted following this appeal. 2
Ms. Barker noted that such a memorandum "would be considered general correspondence under the General Schedule for State Agencies concerning retention of records." Citing prior decisions by this office, Ms. Barker correctly observed that Record Series M0002 on the General Schedule for State Agencies provides that General Correspondence 3 can "be kept up to two years and nothing requires that it be retained beyond the time that it is needed." The memorandum was "intended to assist transport staff and was no longer required to be retained by the retention schedule after the transport to the medical appointment occurred." Because KSP cannot provide a nonexistent record for inspection or copying, and ultimately satisfied its burden of proof under KRS 61.880(2)(c) in explaining that Ms. Edmonds' memorandum containing the requested information was properly destroyed in the normal course of business per the applicable records retention schedule, this office affirms the disposition of Mr. Martinez's request. See 17-ORD-057.
A public agency such as KSP cannot produce that which it does not have; nor is a public agency required to "prove a negative" in order to refute a claim that a certain record exists in the absence of a prima facie showing by the complainant. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037 (affirming the denial by a public agency of a request "in light of its explanation for the nonexistence of the records sought and the absence of any facts or law importing the records' existence"). As in 11-ORD-118, 12-ORD-025, and 13-ORD-018, for example, this office declines to unnecessarily lengthen the instant decision with another summary of the relevant legal authorities given that Mr. Martinez "is no doubt familiar with the line of open records decisions issued by the Attorney General recognizing that, in general, public agencies that deny access to requested records based on the nonexistence of the records cannot be held to have violated the Open Records Act. " 4 11-ORD-118, pp. 1-2; 16-ORD-099 (Martinez/KSP); 16-ORD-114 (Martinez/Owensboro Police Department); 16-ORD-202 (Martinez/KSP).
However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy its burden per KRS 61.880(2)(c), a public agency must explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, 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" ); 12-ORD-195. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. 11-ORD-104, p. 5.
Here, KSP ultimately explained that Ms. Edmonds' memorandum (the only existing responsive document containing a specific reference to Mr. Martinez) was properly destroyed in the normal course of business per the applicable records retention schedule, a review of which confirms the propriety of such action by KSP and validates the agency's position that no such record currently exists. 5 See 12-ORD-148. When, as in this case, a public agency has denied that a document exists and explained why, further inquiry is unwarranted. 05-ORD-065, pp. 8-9. Assuming that KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested," 6 as the record on appeal indicates, KSP cannot be said to have violated the Act in denying a request for a nonexistent record(s). 05-ORD-109, p. 3; 10-ORD-117. The disposition of Mr. Martinez's request is affirmed. See 11-ORD-014.
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
1 The Attorney General has recognized that "this office is not equipped to resolve factual dispute[s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 09-ORD-120; 14-ORD-132. "The role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1); this office is without authority to deviate from that statutory mandate." 07-ORD-112. Insofar as Mr. Martinez is raising such issues, the record on appeal is devoid of any substantiating evidence and the "allegations of records tampering or concealment are not justiciable in this forum." 10-ORD-050 n. 4; 12-ORD-050; 14-ORD-083.
2 Ms. Barker attached the April 20, 2017, e-mail from Ms. Edmonds confirming that she created a memorandum concerning Mr. Martinez's ophthalmology appointment, which included the provider's name and telephone number as well as the date and time of the appointment. "I did not retain a copy of this documentation," she continued, as "to my understanding it was not a necessary document for a medical chart." Rather, these memoranda, or "tickets" are created as a "courtesy for Security personnel for out-count purposes." Ms. Edmonds reiterated that she has "contacted multiple areas of this institution to find this documentation and this document does not exist."
3 General Correspondence is now characterized as "Routine Correspondence." The retention period remains the same. See 14-ORD-137.
4 Insofar as other documents containing the information requested, if any, would not contain a specific reference to Mr. Martinez, as KSP argued in the alternative, Mr. Martinez would be precluded from obtaining those records under KRS 197.025(2). See 17-ORD-023.
5 The Attorney General has noted in prior decisions that "routine correspondence" (also known as "general correspondence") is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency, . . . which are better documented by other records maintained by the agency." (See Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0002.) Although routine correspondence has an indefinite retention period, it may be retained "no longer than two years." Id. In other words, the public agency is vested with discretion to determine whether general/routine correspondence is retained. No requirement exists for the permanent archiving of these records. 00-ORD-132.
6 In assessing the adequacy of a public agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).