Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Chris Hawkins initiated this Open Records Appeal by letter dated May 30, 2017, challenging the disposition by the Little Sandy Correctional Complex ("LSCC") of his May 25, 2017, request for copies of the following:
1) Grievance that I filed within the last 45 days relating to my not receiving Harvoni medication for HCV * I do not want a copy of the records release authorization form, but I do want due dates for responses to be on the Grievance;
2) Grievance that I filed relating to being charged $ 3 for a medical co-payment within last 45 days. I do not want a copy of the medical records release authorization form, but I do want due dates for responses to be reflected on the Grievances.
(Original emphasis.) LSCC granted Mr. Hawkins' request on May 26, 2017. Mr. Hawkins attached copies of the records that he received to his May 30, 2017, Appeal; he complained that LSCC violated the Open Records Act by charging him for nonresponsive documents; overcharging him for copies by charging for the front and back of records with content on both sides; and failing to provide the "due dates" for each level of the grievance process.
Upon receiving notification of Mr. Hawkins' Appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LSCC. In support of the agency's position that Mr. Hawkins was not overcharged for copies that he received, Ms. Barker advised:
He was provided all records that were part of the two grievances except for the authorization form. The page that states "Grievance Coordinator" was on the opposite side of one of the pages the inmate submitted with a grievance. As a courtesy, the institution has agreed to refund the ten cents charged for this page even though it is part of the grievance submitted and is responsive to the request. The other records were submitted by Hawkins and are maintained as part of the electronic record. They are responsive records for the request and if he did not want all of the records he submitted with the requested grievance, then he needed to make that clear in his request. His last cost issue is that he should only be charged for one page when some of the pages of his grievance were submitted on two-sided paper. The paper copies of the grievance are not retained. They are scanned and maintained in an electronic format. He was charged for the copies that were printed from the electronic record. . . .
In addressing Mr. Hawkins' argument concerning the requested "due date records," on behalf of LSCC, Ms. Barker explained:
[Mr.] Hawkins was provided the only due date record that exists for the two grievances he filed. It is attached to his letter of appeal, is dated 3/21/17, is for grievance 17-197, and shows the due date of 04/11/17. This was a healthcare grievance and the due date listed is for the informal resolution that is handled at the institutional level. All other levels of the healthcare grievance are done outside of the institution and the institution does not have any other due date records for this grievance. . . . [referring to memorandum from Grievance Coordinator Brittany Sturgill to Ms. Barker, dated June 14, 2017, a copy of which is attached to Ms. Barker's response]. A contact and address is provided in the memo if inmate Hawkins wishes to make a request to determine if any due date record exists at the higher levels of review for the grievance. For the second grievance (17-256), it was rejected as being filed too late and no due date record was created (Memo Sturgill). 1 The institution acknowledges that it should have stated that the second due date record was not created in the response to the request. Counsel has discussed this need with institutional staff. 2
Citing a line of prior decisions by the Attorney General, Ms. Barker then advised that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess; rather, a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exist and is not required to "prove a negative" in justifying a denial on that basis. 3
The Attorney General has consistently recognized that an inmate in a correctional facility is uniquely situated with regard to exercising his rights under the Open Records Act. 95-ORD-105, p. 3; 05-ORD-080. While "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," the movements of an inmate within a facility are restricted; accordingly, an inmate such as Mr. Hawkins "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-ORD-105, p. 3; 05-ORD-080. For example, by virtue of his confinement an inmate "may be foreclosed from exercising the right to inspect public records prior to obtaining copies." 05-ORD-080, p. 4. In this case, the records in dispute were attachments to a grievance form that Mr. Hawkins submitted; accordingly, he was in the best position to determine and identify which records he was actually seeking. LSCC maintains the attachments to a grievance as part of the electronic record and the attachments were thus responsive to his request. Just as Mr. Hawkins excluded the authorization form(s) in framing the request, he could easily have asked LSCC not to include any other specific records. Because he did not, LSCC did not err in reasonably interpreting his request as encompassing those records and providing Mr. Hawkins with copies of all records that fell within the parameters of his request as framed upon receipt of payment for the copies. Compare 08-ORD-032 (public agency subverted the intent of the Act by commingling nonresponsive public records with responsive public records, thereby creating "unnecessary impediments to effective inspection, " and "by asserting that it had no duty to produce only responsive records").
Nor did LSCC overcharge Mr. Hawkins for the copies provided. When copies of public records are requested, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the courts and this office have recognized the propriety of a DOC policy requiring advance payment of copying fees. In Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), the Kentucky Court of Appeals held that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction." The Attorney General subsequently determined that it is "entirely proper for [a correctional] facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts...." 95-ORD-105, p. 3; 04-ORD-004; 08-ORD-044; 12-ORD-126; 14-ORD-135.
As defined in KRS 61.870(2), "public record" means "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records" ), validates this position. Inasmuch as the challenged practice or policy of charging a reasonable copying fee of ten cents per page, with a two-sided record constituting two separate pages when both sides contain writing or content, "does not interfere, or threaten to interfere, with [Mr. Hawkins'] statutory right of access to nonexempt public records, " but is consistent with KRS 61.874(1), as well as Friend v. Rees , the Attorney General has no basis upon which to find that LSCC violated the Act. 4 08-ORD-044, p. 4.
The remaining question is whether LSCC discharged its duty relative to Mr. Hawkins' request for "due date records." 5 LSCC cannot produce nonexistent records for inspection or copying; nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. 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"); 07-ORD-188; 14-ORD-145. 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). In order to satisfy its burden of proof under KRS 61.880(2)(c), however, a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. 11-ORD-104, p. 5. 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").
In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling 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 or independently located here. 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; compare 12-ORD-195. Nevertheless, LSCC has credibly explained why no due date record was created for Mr. Hawkins' second grievance. 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. 6 05-ORD-065, pp. 8-9. No prima facie showing has been made nor has any evidence been presented to suggest that additional responsive documents were created or maintained; accordingly, the agency's ultimate disposition of Mr. Hawkins' request is affirmed. See 12-ORD-183. 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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