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 Finance and Administration Cabinet ("Cabinet") violated the Open Records Act in the disposition of Donald R. Phillips' April 2, 2018, request for one copy of the contract between the Commonwealth of Kentucky, Department of Corrections ("DOC") and Kentucky Centralized Inmate Commissary, Inc., as well as one copy of the contract between the DOC and Correct Care Solutions, LLC. By letter dated April 6, 2018, Open Records Specialist Traci G. Walker confirmed receipt of Mr. Phillips' request, but "advised that the normal custodian of that information is not the [Cabinet], but rather the Justice and Public Safety Cabinet[,] Department of Corrections." Ms. Walker also indicated that she had forwarded Mr. Phillips' request to "Justice & Public Safety Cabinet, 125 Holmes St. 2nd Floor, Frankfort, Kentucky 40601, phone number 502-564-7554." On appeal, Mr. Phillips argued that "KRS 45(a)(6)" requires the Cabinet to maintain the requested contracts and makes those records available for public inspection.
Upon receiving notification of Mr. Phillips' appeal from this office, Staff Attorney Brad A. Nilsson responded on behalf of the Cabinet. In asserting the Cabinet is required to possess the Personal Service Contracts in dispute, Mr. Nilsson stated, Mr. Phillips apparently intended to reference KRS 45A.045, which provides that the Cabinet "is the central procurement and contracting agency for the Commonwealth. KRS 45A.045(1)." However, the Cabinet "has delegated some procurement authority for Personal Service Contracts to certain Executive Branch Cabinets and Agencies, including DOC. See, e.g. , KRS 45A.695(7) . The two Personal Service Contracts requested by Mr. Phillips were procured and administered by DOC pursuant to such a delegation." 1 Accordingly, Mr. Nilsson advised that DOC "will have copies of these two Personal Service Contracts" and should be able to provide the records to Mr. Phillips in a timely manner. 2 Based upon the following, this office affirms the disposition of Mr. Phillips' request.
The right of inspection attaches only if the record in dispute is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record[s] exist[]," but the agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exists or advising that it lacks possession, following a reasonable search, as the Cabinet did here. 13-ORD-052, p. 3. 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; KRS 61.880(2)(a). Although the intent of the Open Records Act has been has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, 3 the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed.
However, a public agency must explain the nonexistence of the records or its lack of possession if appropriate. See KRS 61.880(2)(c);
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. The Cabinet cannot produce that which it does not have nor is the Cabinet required to "prove a negative" in order to refute a claim that a certain record exists in the possession or custody of the agency in the absence of a prima facie showing by the requester. See
Bowling v. Lexington Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-341 (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 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 11-ORD-037; 15-ORD-188. The Cabinet provided a sufficient explanation for its lack of possession here. However, the analysis does not end there.
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. " The Cabinet promptly advised Mr. Phillips that it does not possess or maintain the records being sought, and notified him that any such records would be in the custody of DOC. In addition to providing the mailing address for DOC, per KRS 61.872(4), the Cabinet also forwarded Mr. Phillips' request to DOC in order to expedite a final disposition of his request. See 17-ORD-019. Accordingly, this office has no basis upon which to conclude that the Cabinet violated the Open Records Act in denying Mr. Phillips' April 2, 2018, request for the specified contracts.
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 [L]ack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13; See 00-ORD-207 (settlement agreement in physical custody of insurance carrier); 04-ORD-123 (drainage records in physical custody of City's independent attorney); 05-ORD-015; 06-ORD-147; 08-ORD-206; compare 96-ORD-41 (Department of Military Affairs properly denied request for documents relating to vending services at air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession); 97-ORD-15 (holding that University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the document resided); 98-ORD-90; 09-ORD-009; 16-ORD-019.
Our holding today is not a departure from this line of decisions, but is based on the understanding that the Cabinet does not possess any copies of the requested contracts in addition to any that may reside in the custody of DOC. To clarify, "[t]here is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency." OAG 90-71, p. 2, cited in 93-ORD-65 (holding that "if an agency has custody and control of public records it cannot withhold those records simply because they might more appropriately or more easily be obtained from another agency"). See also 94-ORD-121; 97-ORD-87; 98-ORD-17; 01-ORD-94; 04-ORD-203; 06-ORD-166; 07-ORD-241; 09-ORD-141; 11-ORD-104.
2 Although Mr. Nilsson further asserted that Mr. Phillips' appeal would then be rendered moot, implicitly relying upon 40 KAR 1:030, Section 6, pursuant to which, "[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter," the instant appeal was filed against the Cabinet, rather than DOC, and would only become moot if the Cabinet provided the records in dispute.
3 See KRS 61.8715.