Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of Inmate Chris Hawkins' open records request, dated June 29, 2018, for "all documentation" relating to certain "grievances" that he filed. On July 6, 2018, KSP responded to Inmate Hawkins by providing him with the responsive records. KSP stated it had no other responsive documents. On July 9, 2018, Inmate Hawkins initiated this appeal.
On June 29, 2018, Inmate Hawkins made an open records request to KSP. KSP received the request on July 3, 2018. The request sought copies of "[a]ll documentation relating to [certain grievances] . I do not want copies of the attachments that I initially submitted with the [g]rievances, only the institutional [g]rievance [f]orms that reflect them being submitted and all developments. I also want all other documents relating to them, including the reason for the Warden's rejection."
On July 6, 2018, KSP timely responded indicating that Inmate Hawkins was being provided with five (5) pages of documents consisting of "the [g]rievance forms along with the rejection notices for each as requested." KSP's response further stated that ". . .no other documents exist from the above grievances as stated on the rejection notices; you filed the grievances past the 5-day deadline. Since the filing was late, the process stopped at the Grievance Coordinators Office and did not go forward to any other offices for consideration." Hawkins appealed to this Office on July 9, 2018. KSP responded to the appeal on July 19, 2018.
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." See 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, KSP affirmatively advised that it provided Mr. Hawkins with the responsive documents in its possession and that there were no additional documents because the grievances were filed late and were, thus, rejected at the initial level. As a result, KSP appropriately denied Inmate Hawkins' request for "additional documentation" that does not exist, and KSP 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 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.