Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Frank Ross initiated this appeal by undated letter that was received in the Office of the Attorney General on April 21, 2017, challenging the inaction of Eastern Kentucky Correctional Complex ("EKCC") upon receipt of his March 22, 2017, request for a copy of his "entire school records in the form of scanned documents on a CD (if possible)." Upon receiving notification of Mr. Ross's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC. Ms. Barker observed that Mr. Ross attached "an authorization form used at EKCC by education staff to obtain school records dated March 22, 2017 and a cover letter that does not show to whom it was addressed requesting school records." Attached to Ms. Barker's appeal response was a copy of an e-mail from Offender Information Specialist Sonya Wright confirming that she did not receive Mr. Ross's request. 1 Ms. Wright further advised that EKCC does not possess the records being sought and noted that Jamie Gevedon, Education Department, has been assisting Mr. Ross. Although Mr. Ross and Ms. Gevedon have both submitted requests to Magoffin County Schools, neither has received any response.
Quoting KRS 61.874(1), and citing a line of prior decisions by this office, Ms. Barker advised that "[a]n inmate at EKCC is required to follow Corrections Policy and Procedure (CPP) 6.1 and send his request to the Open Records Coordinator with a completed money authorization and using the required form." CPP 6.1 has been incorporated by reference in 501 KAR 6:020. Ms. Barker was correct in asserting that Mr. Ross failed to comply with CPP 6.1. See 12-ORD-077; 15-ORD-039. In addressing the merits of Mr. Ross's appeal, Ms. Barker correctly observed that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess; nor does a public agency have to "prove a negative" when denying access to records on that basis. EKCC also relied upon a line of prior decisions in support of this position. In closing, Ms. Barker noted that Mr. Ross may have intended to pursue an Open Records Appeal challenging the failure of the Magoffin County Schools to respond upon receipt of his request(s) as that agency is listed in the authorization form attached to his appeal.
As noted, a public agency such as EKCC 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; 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. The record on appeal is devoid of any showing and the right to inspect records only attaches 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; 07-ORD-190. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record [s] exist[]," but discharges its duty under the Open Records Act in affirmatively indicating that no such records exist and explaining why if appropriate. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
However, in order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling , above, at 341, this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited here. See 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); 11-ORD-118. Because Mr. Ross "produced no affirmative evidence, . . . that [KSR] possesses [the school records that] he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4; see 07-ORD-033. In the absence of the requisite prima facie showing, or any evidence to suggest that EKCC ever had occasion to possess or maintain such records, the agency's disposition of Mr. Ross's request is affirmed.
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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