Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Summary : Kentucky State Penitentiary cannot produce that which it does not have and is not required to "prove a negative" in order to refute unsupported claim that responsive documentation exists in the possession of the agency. KSP discharged its duty under the Open Records Act per KRS 61.880(1) and 61.880(2)(c) in providing a written explanation for its lack of possession.
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in failing to issue a timely written response per KRS 197.025(7) upon receipt of DeShawn Jackson's June 12, 2018, request for a copy of any documentation relating to the disposition by Property Room personnel of his March 29, 2018, request to return his property and the disposition by Warden Randy White of his April 8, 2018, request also seeking the return of his property. Mr. Johnson initiated his appeal by letter dated July 12, 2018, asserting that KSP had "willfully failed and/or refuse to reply" because his inmate legal aide was unexpectedly transferred while in possession of his case files and legal books.
Upon receiving notification of Mr. Johnson's appeal from this office, Staff Attorney Oran S. McFarlan III, Justice and Public Safety Cabinet, responded on behalf of KSP. Mr. McFarlan stated that KSP staff conducted a search for the subject request but determined that KSP did not receive the request until it received the copy attached to Mr. Jackson's appeal; he attached the July 20, 2018, memorandum directed to him by KSP Open Records Coordinator Catherine Weicht in support of that statement. 1 Ms. Weicht further indicated that she "researched his first request for disposition documentation from the Property Room personnel that was included in his appeal. Per Lt. Vinson, no disposition documentation was created in reply to the letter Mr. Johnson sent Lt. Vinson and C/O Lisa Crick." Rather, Lt. Vinson advised that KSP seized the property from a different inmate to whom it did not belong as the Department of Corrections numbers did not match. Ms. Weicht noted that the inmate from whom the property was confiscated was given 45 days, according to Lt. Vinson, during which to have the property returned but he did not exercise that option. Accordingly, Ms. Weicht stated that KSP does not possess any responsive document(s) nor can a public agency such as KSP provide a requester with access to a nonexistent record or that which it does not possess.
Ms. Weicht further explained that she researched Mr. Johnson's request for "disposition documentation from Warden White's response to his letter he stated was dated April 8, 2018. Per Donna Goodchild, Warden White's Secretary, no such disposition documentation exists as none was created. Per Ms. Goodchild, Warden White did not create a response to the letter, as none was needed." Ms. Weicht stated that Warden White "had already addressed this issue with a reply to a previous letter from Inmate Johnson on/about April 3, 2018." Accordingly, Ms. Weicht reiterated that KSP cannot produce a nonexistent record in response to a request.
In responding on behalf of KSP to Mr. Johnson's appeal, Mr. McFarlan cited prior decisions by this office in support of the agency's position that a public agency cannot provide that which it does not have or that which does not exist. Mr. McFarlan further stated that a public agency such as KSP discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist in the possession of the agency following a reasonable search for the record. Here, KSP explained the efforts undertaken to locate the "disposition documentation" requested and therefore asserted this office should affirm its denial of Mr. Johnson's request. Based upon the following, this office affirms the disposition by KSP of Mr. Johnson's request.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which 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"); 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); 12-ORD-087. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, at KRS 61.8715, 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).
However, in order to satisfy the burden of justifying its denial per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records if appropriate. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 04-ORD-075; 12-ORD-195. KSP provided a credible written explanation for the nonexistence of the records being sought and the record on appeal is devoid of any evidence to refute its explanation. Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption).
A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the records being sought exist in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist, following a reasonable search, and explaining why if appropriate. 04-ORD-205, p. 4; 12-ORD-056. When, as in this case, a public agency denies that certain records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 14-ORD-077. KSP did not violate the Open Records Act in denying Mr. Johnson's request for the records being sought as KSP never created those records and it cannot provide that which it does not possess. See 16-ORD-076.
Either party may appeal this decision may appeal 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 This office has consistently acknowledged the inability to conclusively resolve factual disputes relating to actual delivery and receipt of requests and the issuance of responses by public agencies. See 11-ORD-012; 12-ORD-204. Here, the record again lacks adequate proof on this issue for the Attorney General to make a conclusive determination. This office has no reason to question the veracity of either party, but given the conflicting evidence presented, this office declines to find that KSP violated KRS 197.025(7) in failing to issue a timely written response, particularly since KSP promptly issued a written response upon receipt of the copy of the request attached to Mr. Johnson's appeal.