Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act in denying Shane Bright's August 21, 2017, request for "[a]ll emails to and from Lt. Blair regarding Shane Bright's Disciplinary Report # RCC-2016-00473." In a timely written response per KRS 197.025(7), LLCC Offender Information Supervisor Heather McManis explained to Mr. Bright that she had contacted the agency's legal counsel who advised her "to close this request out on our end because our agency cannot obtain access to the requested documents." In accordance with KRS 61.872(4), LLCC also provided Mr. Bright with contact information for Jeremy Shuck, Offender Information Services, Frankfort, Kentucky, the individual to whom Mr. Bright needed to direct his request. 1 In his November 29, 2017, letter of appeal, Mr. Bright advised that LLCC had "referred" his request to Mr. Shuck and that he was appealing due to Mr. Shuck's failure to respond to his request.
Upon receiving notification of Mr. Bright's appeal from this office, Attorney T. Alex Mattingly, Justice and Public Safety Cabinet, responded on behalf of LLCC. Mr. Mattingly advised that "due to technology access limitations at the institution, the staff was not able to search Lt. Blair's email to see if any applicable records existed." Mr. Bright did not provide any evidence, Mr. Mattingly observed, except for his assertion, that he submitted a request "to the appropriate person/entity listed in LLCC's response letter that could access" the requested e-mails nor did he indicate when he submitted his request to Mr. Shuck. 2
Following receipt of Mr. Bright's appeal, "a further search was made for the email records and it was determined that one email (related to scheduling Bright's disciplinary hearing . . .) had been destroyed. " Mr. Mattingly advised that said e-mail "was of a non-policy nature and did not have permanent value. 17-ORD-048. This correspondence would be considered general correspondence under the General Schedule for State Agencies." The General Schedule allows general correspondence to be maintained for up to two years, Mr. Mattingly noted, "and nothing requires that it be retained beyond the time that it is needed. (General Schedule [Record Series] M0002). See 17-ORD-048, 15-ORD-144, 14-ORD-074, 12-ORD-148, and 09-ORD-044." 3 Mr. Bright's disciplinary hearing took place on April 17, 2017, Mr. Mattingly explained, so it was unnecessary to maintain the e-mail after that and Lieutenant Blair properly deleted it. Because LLCC 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 Lt. Blair's e-mail, the only responsive document, was properly destroyed in the normal course of business per the applicable records retention schedule, this office affirms the disposition of Mr. Bright's request. 4 See 17-ORD-057.
A public agency such as LLCC 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 Cnty Gov't, 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"). In a line of prior decisions, the Attorney General has recognized 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. " 11-ORD-118, pp. 1-2; 07-ORD-188; 11-ORD-209; 16-ORD-099. The right of inspection 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. Thus, a public agency's response 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 indicating that no such records exist as LLCC has asserted in this case. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. 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, 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 of justifying a denial 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, LLCC ultimately explained that Lt. Blair's e-mail 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 LLCC and validates the agency's position that no such record currently exists. See 12-ORD-148. When, as in this case, a public agency has denied that a record exists and credibly explained why, further inquiry is unwarranted. 05-ORD-065, pp. 8-9. Assuming that LLCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested," 5 as the record on appeal indicates, LLCC 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. Bright'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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."
2 This office notes that Mr. Bright's appeal is time-barred under KRS 197.025(3) insofar as the denial by LLCC is dated August 21, 2017, and his appeal is dated November 29, 2017, well beyond the permissible 20-day timeframe. Because the record is unclear as to if or when he resubmitted his request per the instructions contained in the August 21 response by LLCC, and LLCC has not argued that Mr. Bright's appeal is untimely, but has addressed the merits of his appeal, in the interest of efficiency this office proceeds accordingly.
3 General Correspondence is now characterized as "Routine Correspondence." The retention period remains the same. See 14-ORD-137. This office 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.
4 Mr. Mattingly included a copy of an e-mail that Lt. Blair directed to him on December 12, 2017, confirming that he no longer has the subject e-mail and further indicating that the deleted e-mail merely advised that he needed to "do the hearing for the disciplinary report on Inmate Bright."
5 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)).