Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Summary : This office has no basis upon which to find that Northpoint Training Center violated the Open Records Act in failing to issue a timely written response per KRS 197.025(7) because the conflicting evidence presented on appeal precludes the Attorney General from conclusively resolving the factual dispute concerning the actual delivery and receipt of the request. Upon receiving the copy of the request attached to requester's appeal, NTC referred the requester to the custodial agency for one responsive document it does not possess, in accordance with KRS 61.872(4). NTC further agreed to provide requester with a copy of the other document responsive to his request upon his compliance with KRS 61.874(1) and relevant policies and procedures.
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in failing to issue a timely written response to Thomas Ridner's June 14, 2018, request for a copy of the "Order/Warrant to Revoke Thomas Ridner['s] # 268500 Pretrial Home Incarceration under Whitley Circuit Court Indictment No. 13-CR-00053; and a copy of the Custody Documentation from Whitley County Circuit Court Indictment No. 13-CR-00053, which credited Thomas Ridner 268500 Pretrial Home Incarceration pursuant to KRS 532.245 and KRS 532.120." 1 Having received no response from NTC, Mr. Ridner initiated this appeal by letter dated June 28, 2018.
Upon receiving notification of Mr. Ridner's appeal from this office, Attorney Julie C. Foster, Justice and Public Safety Cabinet, responded on behalf of NTC. Ms. Foster stated that NTC did not receive Mr. Ridner's June 14 request prior to receiving the copy attached to his appeal. She attached Offender Information Specialist Lisa Douglas' July 10, 2018, affidavit in which Ms. Douglas attested that a "search was made for the request attached to the appeal. 2 It was not logged as received and could not be located in [the Kentucky Offender Management System ("KOMS")] where it would have been saved." Ms. Douglas further attested that she date stamped the request as received on July 5, 2018, when she received the appeal; she issued a written response on July 6, 2018.
In her appeal response on behalf of NTC, Ms. Foster asserted that Mr. Ridner's appeal "is premature since the request was not received until the appeal was filed." She further argued that Mr. Ridner's appeal was incomplete "because it did not include the response provided" to him by letter dated July 6, 2018. Ms. Foster cited KRS 61.880(2)(a) and relied upon 40 KAR 1:030 Section 1 in support of the agency's position this office should not review Mr. Ridner's appeal. 3
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 "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. Ridner's June 14, 2018, request for this office to conclusively resolve the related factual dispute. The record lacks any basis to question the veracity of NTC or Ms. Douglas, or to conclusively refute the position of either party. In the absence of any irrefutable proof that NTC actually received Mr. Ridner's June 14 request prior to receiving the copy attached to his June 28 appeal, this office is unable to determine that NTC on 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.
If Mr. Ridner had not waited until after the statutory time period for the agency's response to his June 14 (Thursday) request had expired prior to submitting his appeal by letter dated June 28 (Thursday), his appeal would most certainly be deemed premature and thus incomplete. However, in this case, Mr. Ridner did not initiate his appeal for ten working days, or five working days after the five-day period for a response had expired. In other words, a reasonable amount of time elapsed for mail delivery. Compare 15-ORD-137; 18-ORD-116. Given the conflicting evidence presented as to whether NTC received his request, and the lack of any objective proof to dispute his timeline or account of events, the Attorney General is unable to conclusively determine that his appeal is premature.
Upon request, Ms. Foster provided this office with a copy of Ms. Douglas' July 6 response to Mr. Ridner's request. Ms. Douglas advised Mr. Ridner that he was provided with a copy of the Judgment in Whitley Circuit Court Indictment No. 13-CR-00053 on June 18, 2018. However, the requested Order/Warrant to Revoke is not a part of Mr. Ridner's institutional file and, therefore, Ms. Douglas could not locate the record in KOMS. 4 In accordance with KRS 61.872(4), Ms. Douglas provided Mr. Ridner with a mailing address for the custodial agency, Whitley Circuit Court. Mr. Douglas further explained that NTC would provide Mr. Ridner with a copy of his custody time credit sheet upon receipt of a properly submitted request, including a completed Authorization to Use Inmate Account Form, containing his name, DOC number, and dorm number, assuming that sufficient funds are in his inmate account. See KRS 61.874(1);
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); 08-ORD-044; 14-ORD-243; 17-ORD-186. Accordingly, it appears that any issues relating to said record have been rendered moot per 40 KAR 1:030 Section 6.
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 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 Ms. Douglas indicated that part of her duties "include responding to open records requests by searching for records in the Kentucky Offender Management System (KOMS), collecting other institutional records from staff at NTC, and preparing written responses to requests."
3 Pursuant to KRS 61.880(2)(a):
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.
The corresponding regulation, 40 KAR 1:030 Section 1, provides "[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."
4 A public agency cannot produce a nonexistent record for inspection or copying. See 14-ORD-245.; 15-ORD-137; 18-ORD-116. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the possession of the agency. 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).