Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in denying John Smith's March 19, 2018, request for one copy of "(all) 'Medical Sick Call Forms' issued from the dates of April 1, 2017 through June 1, 2017[,]" specifically, "the sick call in question is about sore rectum from illegal cavity search in (3-cellhouse 11 - left-cell 16)." By memorandum directed to Mr. Smith on March 23, 2018, Melissa Edmonds, Medical Department Administrative Assistant, confirmed receipt of Mr. Smith's request. "After an exhausting search of your electronic medical record," Ms. Edmonds advised, "I have determined no such document exists. However, you have a sick call in your record within the period you are asking for, but [it] does not pertain to" the subject matter specified. Ms. Edmonds further explained that Mr. Smith should make a new request, including "a properly signed CPO [Cash Paid Out]," if he wished to receive a copy of that record. 1 In support of her denial, Ms. Edmonds referenced prior decisions of this office upholding the principle that a public agency cannot provide a nonexistent record for inspection or copying, but must affirmatively indicate that no such record exists in the possession of the agency in order to discharge its duty under the Act.
Upon receiving notification of Mr. Smith's appeal from this office, Staff Attorney Angela E. Cordery, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Cordery advised "[t]he copy of a sick call form (or Healthcare Request) dated April 22, 20[17], shows that [Mr. Smith] had described his medical issue as relating to a prescription and not a 'sore rectum. '" A copy of the form was attached to Ms. Cordery's appeal response to verify her description of the content. Ms. Cordery explained that "[i]t was during this sick call pertaining to this request that the unrelated medical issue was discussed with the nurse. This information had not been documented on the sick call form; therefore, Ms. Edmonds' March 23, 2018 response to [Mr. Smith] that the requested record did not exist was correct." KSP again referenced the line of prior decisions by this office validating its position as to nonexistent records.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See Bowling v. Lexington-Fayette Urban Cnty. Gov't, 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"); 11-ORD-091. Although the intent of the Open Records Act has been statutorily linked at KRS 61.8715 to the intent of KRS Chapter 171 pertaining to management of public records, 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).
However, in order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the record if appropriate. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 04-ORD-075; 12-ORD-195. KSP ultimately provided a written explanation and the record on appeal is devoid of any evidence to refute its explanation. Compare 11-ORD-074(holding that "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" and the agency failed to rebut the presumption). A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the record in dispute exists in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that a certain record does not exist, following a reasonable search, and explaining why, if appropriate. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056.
KSP conducted a search for the "sick call form" described and "is not required to speculate in order to comply with a request made under the Open Records Act [.]" 15-ORD-210, p. 5. 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. 05-ORD-065, pp. 8-9; 14-ORD-077. KSP did not violate the Open Records Act in denying Mr. Smith's request after conducting a thorough search for the record that Mr. Smith described and notifying him that no such record was located. KSP has agreed to provide Mr. Smith with a copy of the potentially responsive "nurse's note" upon receipt of payment in accordance with KRS 61.874(1) and the relevant Department of Corrections Policy and Procedure. See 08-ORD-044. This office affirms the denial by KSP.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to 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.
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