Opinion
Opinion By: Andy Beshear,ttorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections, Division of Probation and Parole, District 17 - Louisville West ("Division"), violated the Open Records Act in failing to issue a timely written response per KRS 197.025(7) upon receipt of James Ingram's May 4 , 2018, request for "a copy of the letter I mailed to your office May 3, 2018," and its response. By letter dated May 14 , 2018, Mr. Ingram initiated this appeal challenging the purported inaction of the Division. Mr. Ingram further complained the Division failed to "explain why the requested record does not exist" and failed to explain whether it conducted a search for the record.
Upon receiving notification of Mr. Ingram's appeal from this office, Staff Attorney Julie C. Foster, Justice and Public Safety Cabinet, responded on behalf of the Division. Ms. Foster explained that a search was conducted for the request when the Division received Mr. Ingram's appeal but no such request was located. Attached to Ms. Foster's May 21, 2018, appeal response was a copy of District 17 Supervisor Griffin Brown's e-mail of that date confirming that "[n]either the assistant supervisor who handles the mail nor I remember seeing anything from" Mr. Ingram. Supervisor Brown further noted that Mr. Ingram omitted the suite number from the address to which he mailed the request. Ms. Foster correctly observed in her appeal response that the Division has five days, excluding weekends and holidays, in which to issue a written response under KRS 197.025(7); she enclosed a copy of the May 21, 2018, response that Supervisor Brown directed to Mr. Ingram. Supervisor Brown advised Mr. Ingram that his office received the May 4 request on May 17 (along with notification of his appeal); he explained that no responsive documents were located when the Division conducted a search "because this office did not receive a letter from you (therefore no response was sent)." Ms. Foster noted that Supervisor Brown's May 21 response was timely under KRS 197.025(7) based upon the receipt date of May 17. 1 Accordingly, the Division argued that Mr. Ingram's appeal was both premature and unperfected, citing KRS 61.880(2)(a) and 40 KAR 1:030 Section 1 in support of its position.
This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204; 18-ORD-006. More specifically, the Attorney General has recognized that "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. As in the these decisions, the conflicting record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Ingram's March 4, 2018, request for this office to conclusively resolve the related factual dispute. The record lacks any basis to question the veracity of the Division or conclusively refute its position. In the absence of any irrefutable proof that the Division actually received Mr. Ingram's March 4 request prior to receiving the copy attached to his appeal, this office is unable to determine that the Division violated the Act from a procedural standpoint in failing to issue a written response within five business days per KRS 197.025(7). See 18-ORD-006.
This office also has no reason to question the veracity of Mr. Ingram, but does note that his request is dated May 4, a Friday, and his letter of appeal is dated May 14, 2018, a Monday. Even assuming the Division actually received Mr. Ingram's request on the following workday after it was mailed, Monday, May 7, 2018, the Division was not statutorily required to mail a response until the fifth workday following receipt, May 14, 2018, the date on which Mr. Ingram sent his appeal. For this reason, the appeal is premature and unperfected.
KRS 61.880(2)(a) establishes the requirements and timeline for initiating an Open Records Appeal. That statute provides:
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.
In sum, 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 a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
Mr. Ingram is an inmate confined in a penal facility, and KRS 197.025(3) therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC (or its divisions) or a correctional facility under its jurisdiction, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. Because Mr. Ingram failed to do so, his appeal is premature and unperfected. 2 See 04-ORD-022; 11-ORD-073; 13-ORD-011; 15-ORD-007.
Either party may appeal this decision 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 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
2 Supervisor Brown has now confirmed that no responsive documents exist within the possession of the Division. A public agency cannot produce a nonexistent record for inspection or copying. See 14-ORD-245.; 15-ORD-137. 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"); 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).