Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in its disposition of inmate Mario Baker's open records request, dated June 20, 2018, for "entry/exit" forms for a cell that he occupied. On June 29, 2018, Mr. Baker initiated this appeal based on the LSCC's alleged failure to provide the requested records.
On June 20, 2018, Mr. Baker made an open records request for "the entry/exit form" for a particular cell. LSCC's records department received the request on June 25, 2018. On the same date, LSCC timely responded to Mr. Baker's request, indicting that the "requested [document] does not exist" because "[t]here are no forms to sign when moving into or out of a [General Population] cell. " On June 29, 2018, Mr. Baker appealed LSCC's denial to this office.
On July 6, 2018, in response to Mr. Baker's appeal, the LSCC stated that that "the requested documents do not exist and LSCC properly [denied] the request." In particular, LSCC stated LSCC Policy and Procedure 10-01-01(C)(3)(a) provides "[u]pon assignment, discharge, or cell change, the assigned floor officer shall complete a Cell Entry-Exit Form noting any deficiency." However, LSCC further states that this policy expressly and exclusively applies to the Restrictive Housing Unit ("RHU"). LSCC stated that no such policy exists for general population cells.
It is well-settled that a public agency cannot afford a requester access to a record that it does not have or which does not exist. 07-ORD-190, 06-ORD-040, 99-ORD-98, 09-ORD-129. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150, 04-ORD-43, 09-ORD-088, 14-ORD-072, 14-ORD-094, 15-ORD-046. An agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 11-ORD-209, p. 1, 5.
In the instant appeal, LSCC affirmatively stated that it has no policy requiring the creation or retention of entry/exit forms for general population cells. As a result, LSCC appropriately denied Mr. Baker's request, and is not required to "prove a negative," as discussed above. Accordingly, we find no violation of the Act.
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.