Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, 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 its disposition of an open records request submitted by inmate Justin Cothern ("Appellant"). On March 23, 2018, Appellant submitted a Request to Inspect Public Records form to the KSP Custodian of Records. Appellant stated that he was seeking a copy of "the disposition to my February 1, 2018 correspondence to you concerning DR#: KSP-2017-02160," but provided no further description. On March 29, 2018, the Records Custodian denied the request. As grounds for the denial, she stated that "this office has never received an open records request from you in reference to DR# KSP-2017-02160 in February 2018." In closing, the denial states that "[a] public agency cannot afford a requester access to a record that it does not have or which does not exist."
On April 13, 2018, Appellant appealed the denial. In the appeal, Appellant clarified the description of the records stating, "I specifically requested the disposition of my February 1, 2018 correspondence to you [Randy White, Warden] concerning DR#: KSP-2017-02160." Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded to the appeal on behalf of KSP. Ms. Barker argues that the Records Custodian interpreted "you" to be the Custodian herself "since no other explanation was provided[.]" Ms. Barker repeats the argument that the agency cannot afford a requester access to a record that it does not have, and references decisions by this Office that support the position.
We find that, based upon her understanding of the open records request, the Records Custodian conducted a search for records that complied with the requirements of the Act. The record before us shows that the custodian searched the February 2018 open records, but could not locate any documents relating to DR#: KSP-2017-02160. The Attorney General has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or those records 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 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"). 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); 18-ORD088.
However, in order to satisfy the burden of proof imposed by KRS 61.880(2)(c) 1, public agencies must offer some explanation for the nonexistence of the records. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011). The response informed Appellant that the documents were not located, but also documented the locations searched by the Records Custodian. A public agency violates KRS 61.880(1) 2 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. We find that KSP discharged its duty under the Act.
A party aggrieved by this decision shall 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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