Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Northpoint Training Center ("NTC") violated the Open Records Act in its response to an open records request submitted by inmate Uriah M. Pasha ("Appellant"). For the reasons stated below, we find that NTC did not violate the Act.
On July 26, 2018, Appellant submitted a Request for Inspection of Records form to the NTC Custodian of Records. Appellant submitted the form seeking copies "of all correspondence to the NTC Adjustment Hearing Office/Officer from Uriah Pasha 092028 between July 11, 2018 -- July 25, 2018." On August 6, 2018, a response was issued on behalf of NTC by the adjustment officer, John Hall. Mr. Hall stated:
After a thorough review of your institutional file and search for said correspondence, I was unable to locate any such document. Northpoint Training Center cannot provide documents that do not exist in response to an Open Records Request.
Appellant filed an appeal with this office on August 14, 2018. In his appeal, Appellant states that he "mailed to the Adjustment Hearing Office his requests for witnesses and documented evidence to be heard at the hearings." He also argues that "[t]he office received the correspondence and failed to enter it into the record." Appellant argues that these correspondences "are to have been maintained for twenty (20) years, as they are apart [sic] of the Disciplinary Record." Appellant asks that this office investigate the matter and make a referral to the "[t]he Department of Libraries." 1
Julie Foster, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of NTC. Ms. Foster points out that Mr. Hall issued the response and stated that he "was unable to locate any such document." She also attached to the response an email message from Mr. Hall. In that message, Mr. Hall states that he did not receive requests for witnesses or documented evidence from Appellant. Ms. Foster argues that NTC "cannot provide documents that do not exist in response to an Open Records Request."
NTC did not violate the Act when it failed to produce the correspondence requested by Appellant. The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the absence of a prima facie showing by the requester. See
Bowling v. Lexington Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-41 (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"); 18-ORD-112; 07-ORD-188; 07-ORD-190. Accordingly, NTC cannot afford a requester access to records which it does not have, or which do not exist. See 17-ORD-018; 99-ORD-098. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150, 09-ORD-088, 04-ORD-043.
However, an agency must offer some explanation for the nonexistence of the records. See 11-ORD-041, p.2; 10-ORD-222. A public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing
Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). An agency meets the "good faith" standard of 95-ORD-96 upon sufficient documentation of the effort to identify and locate responsive documents and explain why they do not exist. See 16-ORD-097 (finding Mayor's description of an exhausting search was an adequate search recognized in 95-ORD-96); 04-ORD-149 (finding the response of Kentucky Retirement Systems documented a search using methods which could reasonably be expected to produce the records requested).
The record establishes that NTC fulfilled its obligations under the Act. The adjustment officer issued the initial response to Appellant's request. The officer informed Appellant that there was no relevant correspondence in his institutional file. The response to the appeal also contains a statement from the adjustment officer that the he did not receive the correspondence and he could not locate the records. Appellant does not make a prima facie showing that the correspondence exists. He "has produced no affirmative evidence, beyond mere assertions, that [NTC] possesses [a record such as he] requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. In the absence of any facts from which existence of such records can be presumed, the Attorney General must affirm the agency's denial of his request.
Appellant asks that this office initiate an investigation regarding the existence of the correspondences at issue. However, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; see also KRS 61.880(2)(a). 2 "[I]t is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p.4. Accordingly, Appellant's request is beyond the statutory authority granted this office. 3
Either party aggrieved by 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 Appellant uses the term "Department of Libraries" in his appeal. For purposes of this opinion, the Attorney General shall assume that the Appellant intended to reference the Department for Libraries and Archives in the Education and Workforce Development Cabinet, because Kentucky statute does not create a "Department of Libraries" or "Department of Libraries and Archives." See KRS 12.020.
2 KRS 61.880(2)(a) states: "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."
3 Appellant argues that NTC violated the applicable records retention schedule in failing to preserve the correspondence. We are unable to determine whether the purported correspondence was received, and without some proof of receipt, the alleged failure to retain correspondence appropriately is speculative. Thus, we are unequipped to make a determination that NTC's alleged failure to comply with a retention schedule warrants referral to the Department for Libraries and Archives.