Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor ("Governor's Office") violated the Open Records Act in the disposition of Uriah M. Pasha's January 29, 2018, request for a "copy of Prisoner Uriah M. Pasha['s] # 092028 letter to Governor [] Matthew Bevins dated Jan. 25, 2018; AND the Governor's Office['s] response to said letter." In a timely written response, Deputy General Counsel Matthew F. Kuhn responded on behalf of the Governor's Office. Mr. Kuhn advised that he was attaching responsive documents to his February 2, 2018, letter without further comment. In his February 12, 2018, letter of appeal, Mr. Pasha advised that he was challenging the failure of the Governor's Office to include a copy of its response to his January 25, 2018, letter as the agency neither conducted a search for it nor explained its nonexistence. 1
Upon receiving notification of Mr. Pasha's appeal, Mr. Kuhn supplemented his response on behalf of the Governor's Office. Mr. Kuhn justified the agency's denial as follows:
Mr. Pasha's assertions have no basis in law or fact. The Governor's Office has not responded to Mr. Pasha's January 25, 2018 letter; thus, there is no record of that letter for the Governor's Office to turn over. See 14-ORD-245 . . . In fact, the records that the Governor's Office produced to Mr. Pasha included its internal recordkeeping (attached hereto), showing that, at the time of his open records request, the Governor's Office had not responded to Mr. Pasha's January 25, 2018 letter ( i.e. , the "response date" field is blank).
The Governor's Office is not required to produce a nonexistent record nor is the agency expected to "prove a negative" in order to refute a claim that a certain record exists under the rule announced in Bowling v. Lexington-Fayette Urban Cnty Gov't, 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 [the agency] 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").
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 2 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). The Kentucky Open Records Act only applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120; 17-ORD-036. When, as in this case, a public agency denies that any responsive document exists in the agency's possession or control, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 17-ORD-215. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the record exists, with the necessary implication being that a public agency discharges its duty under the Act in affirmatively indicating that a certain record is nonexistent, and explaining why, as the Governor's Office ultimately did here. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122. In the absence of any legal authority requiring the Governor's Office to create or maintain such a record, or any objective proof to refute its position that no such record was created, this office affirms the denial of Mr. Pasha's request.
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