Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
At issue in this appeal are two (2) open records requests submitted by Chris Hawkins ("Appellant"), a prison inmate at the Kentucky State Penitentiary ("KSP"). Appellant states that the requests were submitted to the Open Records Coordinator at the Western Kentucky Correctional Complex (WKCC), but the appeal shows that the Kentucky State Penitentiary (KSP) issued the responses.
Appellant submitted the first request to obtain copies of cash payment orders (CPO) 1 relating to two institutional grievances. However, Appellant did not attach the corresponding Open Records Request form to his appeal. Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of KSP. Ms. Barker argues that Appellant failed to perfect his appeal of the grievance CPOs 2 and requests that the Attorney General not review this request.
Appellant states that he submitted "another open records request for (WKCC) to send me 'sales receipts from canteen purchase between 11/3/17 and 11/30/17, where I purchased (5) song purchases item # 1240 from canteen [.]'" Appellant attached the Open Records Request form that corresponds to the canteen receipts to the appeal. He also attached the KSP response. The response states that the KSP Open Records Coordinator contacted Appellant by telephone to inform him that the she had located "two purchase receipts as well as a refund receipt that matches your request." However, Appellant disputes the accuracy of the purchase receipts produced. Appellant argues, "I still haven't obtained the (2)(CPOs) originally sought." He further states "I've only purchased (5) songs. . .once," and "I never received that (or any refund) !" Appellant also asks this Office to address his allegation that he was charged for duplicate receipts.
Regarding the request for canteen receipts, Ms. Barker states that the KOMS 3 system was searched and "KSP staff located three responsive inmate account records showing duplicate receipts for the same purchase of songs and a refund for the incorrect second charge[.]" Ms. Barker included an affidavit from the KSP Open Records Coordinator. The Coordinator states that WKCC and KSP canteen records are both accessible in the KOMS system, and KSP agreed to respond for simplicity. She also states that she contacted Appellant by phone to inform him that she found two receipts and a refund receipt, and to verify that these were the correct records before sending. The Coordinator states that these "receipts match his description of the amount, the songs, as well as the timeframe he provided." Ms. Barker closed the response arguing that the other claims raised by Appellant are not appropriate for an open records appeal.
This Office is precluded from considering the issues relating to the grievance CPOs because that aspect of the appeal was not perfected. Appellant was required to attach a copy of the original open records request for the grievance CPOs to his appeal. KRS 61.880(2)(a) 4 establishes the requirements for an open records appeal. The statute requires that "[i]f a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection." See KRS 61.880(2)(a). We interpret this provision to mean that the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of the public agency. See 13-ORD-011; 17-ORD-118. Further, 40 KAR 1:030, Section 1 prohibit the review of an appeal that fails to conform to the statutory requirement. 5 Therefore, we cannot address the disposition of the grievance CPO requests.
Regarding the canteen receipts, KSP complied with the Open Records Act when it provided Appellant with the receipts in its possession. The KSP Records Coordinator searched the KOMS system and produced the receipts that matched the description provided by Appellant. Appellant does not agree that he received the correct receipts, but there are no grounds to find that KSP violated the Open Records Act. The Attorney General has long recognized that a public agency cannot afford a requester access to a nonexistent record or those records it does not have in its possession. 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 certain records exist. 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"). In the absence of the requisite prima facie showing, or any evidence to suggest that additional records exist, we must support KSP's response to the request for records.
Appellant does not provide support for his allegation that KSP produced the wrong canteen receipts from the KOMS system. However, in order to satisfy the burden of proof imposed by KRS 61.880(2)(c), 6 the public agency must offer some explanation for the nonexistence of the records. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011). The record shows that KSP satisfied that burden of proof by searching the repository for canteen records and documenting that search in the response. The Records Coordinator contacted Appellant in advance of providing copies to explain the search and discuss the findings. A public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing
Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). KSP made a good faith effort and fulfilled its obligation under the Act. In the absence of any facts from which the existence of additional records can be presumed, the Attorney General must affirm the agency disposition of this open records request.
With regard to Appellant's allegations that he has never actually received the canteen refund and that he was charged for duplicate receipts, this Office must respectfully decline to address those issues. Such issues are outside of the scope of our review under KRS 61.880(2)(a) and cannot be considered in the context of an open records appeal. These two issues are not appropriate for an open records appeal.
A party aggrieved by this decision may appeal it 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 Cash Payment Orders" are paper receipts that authorize cash paid out of an inmate's account. The orders are a substitute for currency exchanges between the correctional institution and the inmate, and they evidence the date, amount, and purpose for the exchanges.
2 As an alternative argument, Ms. Barker claims that the appeal of the grievance CPOs is moot because the records were sent to Appellant by WKCC staff on April 9, 2018. Ms. Barker attached an affidavit from the WKCC Open Records Coordinator to verify the claim.
3 KOMS" is an abbreviation for "Kentucky Offender Management System" used by the Kentucky Department of Corrections.
4 KRS 61.880(2)(a) states: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."
5 40 KAR 1:030 Section 1 states: "Form. The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
6 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."