Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Kentucky Open Records Act in the disposition of Isidro Perez's August 31, 2017, request for one copy of "Part II of DR#: LLCC-2017-011 69 rendered on or about May 2017 or June 2017 (regarding the write-up on my Clear Tech 13 in. TV)." (Emphasis added.) On September 6, 2017, Records Custodian Sonya Wright provided Mr. Perez with a copy of a document entitled, "Disciplinary Report Form Part II -- Hearing/Appeal," for DR # : LLCC-2017-011 66 . By letter directed to Ms. Wright on September 7, 2017, Mr. Perez advised that she had provided him with a copy of the wrong record for the second time, namely, Part II of the Disciplinary Report for DR # : LLCC-2017-01166 rather than DR # LLCC-2017-01169.
Upon receiving notification of Mr. Perez's appeal from this office, Assistant General Counsel Amy V. Barker responded on behalf of EKCC. Ms. Barker advised:
After receipt of the appeal, a further search was made for the record. It was determined that a disciplinary report with that number had been dismissed before a Part II for the report was created. . . . A public agency cannot afford a requester access to a record that it does not have or which does not exist. 17-ORD-018, 15-ORD-018, 09-ORD-129, 07-ORD-190, 06-ORD-040, 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150, 04-ORD-43, 09-ORD-088, 14-ORD-072, 14-ORD-094, 15-ORD-046. An agency is not required to "prove a negative" when explaining that it does not have a record that it does not exist. 11-ORD-209, p. 1, 5; 09-ORD-194.
Attached to Ms. Barker's September 20, 2017, letter was a copy of the agency's August 22, 2017, response citing KRS 61.874(1) and
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), in support of its denial based on Mr. Perez's inability to pay the associated copying fee. A copy of the agency's September 18, 2017, memorandum was also included with Ms. Barker's response. Offender Information Specialist Tammy Skinner advised Mr. Perez that after "speaking with the Warden's office, it has been determined that the document you request is for a disciplinary report that was dismissed; however, a Part II was never created. The record you seek does not exist. The Records Department does not have access to dismissed disciplinary reports." Because of the misunderstanding, EKCC refunded the $ .50 that EKCC charged Mr. Perez for the copy of the incorrect document provided.
EKCC is not required to produce nonexistent records nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005); 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 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring EKCC to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 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" ); 11-ORD-074 (recognizing that the "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"). However, the inability of the agency to produce the document requested because of its nonexistence was "tantamount to a denial and . . . it was incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019; 14-ORD-045.
The right to inspect attaches only 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. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3; 09-ORD-145; 10-ORD-215. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively so indicating, after it conducts a reasonable search, and explaining why if appropriate, just as EKCC ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3; 14-ORD-204. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145.
"[EKCC] cannot produce for inspection a record[s] that never existed, but it is incumbent on the [agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2; 15-ORD-109 (agency committed a procedural violation of the Act in failing to conduct an "appropriate search" for the document requested as it did not realize no responsive document existed, "but merely denied the request based on what a hypothetical [document] might contain"). Insofar as EKCC initially failed to affirmatively indicate whether the responsive document existed, it failed to fully discharge its duty under the Open Records Act. See 13-ORD-205; compare 15-ORD-167. However, EKCC ultimately discharged its duty under the Act in conducting a reasonable search, notifying Mr. Perez that no such document was ever created, and providing a credible explanation for its nonexistence; nothing else is required.
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 must not be named as a party in that action or in any subsequent proceeding.