Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in the disposition of Leonel Martinez's August 29, 2018, request for "My medical record reports of my blood pressure checks for the whole month of August 2018. Medical calls and Email logs of APRN Tara Hughes regarding Leonell [sic] from the whole month of August." Mr. Martinez provided a list of specific dates on which LSCC purportedly checked his blood pressure. LSCC received Mr. Martinez's request on September 7, 2018, and issued a timely response per KRS 197.025(7) on September 10, 2018. Medical Records Clerk Tina Moore denied Mr. Martinez's request because "there is no public record maintained by the Department of Corrections responsive to your request." Citing prior decisions by this office, Ms. Moore asserted that a public agency cannot provide a requester with access to a nonexistent record or that which it does not have. Rather, a public agency "discharges its duty under the Open Records Act by affirmatively so stating." Ms. Moore indicated to Mr. Martinez that she "conducted an exhaustive search" of his records but "found no documentation of blood pressure checks" on any of the dates that he listed. However, Ms. Moore enclosed copies of the only existing responsive documents.
By letter dated September 11, 2018, Mr. Martinez initiated this appeal. He alleged that a nurse "emailed [Tara] Hughes to inform her that [he] needs his meds. This request was denied." Mr. Martinez also maintained that he was charged for 10 blank pages. Finally, he asserted that LSCC has violated provisions of KRS Chapters 311 and 314, among others. Based upon the following, this office finds no basis upon which to conclude that LSCC violated the Open Records Act in the disposition of Mr. Martinez's request.
Upon receiving notification of Mr. Martinez's appeal, Attorney Julie Foster, Justice and Public Safety Cabinet, responded on behalf of LSCC. Ms. Foster enclosed a copy of a memorandum dated October 2, 2018, in which Ms. Moore confirmed that she has "provided Mr. Martinez with all available records that are in his chart. There is no record available of an email between Mrs. Hughes and a nurse and we do not record phone calls[; therefore,] those were not provided to him. I failed to include that statement in my denial[.]" 1 Ms. Moore indicated that she did not charge him for copies of blank pages. 2 Accordingly, Ms. Foster reiterated the agency's position that a public agency cannot provide that which it does not have or which does not exist, nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. Ms. Foster also maintained that most of the allegations made by Mr. Martinez cannot be resolved in this forum, citing prior decisions by this office.
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; 04-ORD-205. 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. See Bowling v. Lexington-Fayette Urban Cty. 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-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 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); 07-ORD-188; 16-ORD-134. Compare 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"); Cabinet for Health and Family Servs. v. Todd Cty. Std., 488 S.W.3d 1 (Ky. App. 2016)(affirming opinion and order enforcing 11-ORD-074); 12-ORD-195. 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, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231.
However, a public agency such as LSCC violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search (and explaining why, if appropriate). 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. Mr. Martinez "has produced no affirmative evidence, beyond mere assertions, that [LSCC] possesses such records as [he] has 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. When, as in this case, a public agency has denied that additional records exist and explained why, further inquiry is unwarranted. 05-ORD-065, pp. 8-9.
The record on appeal shows that LSCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested;" 3 thus, LSCC cannot be said to have violated the Act in denying a request for nonexistent records. 05-ORD-109, p. 3; 10-ORD-117. Rather, in the absence of the requisite prima facie showing, or any facts or evidence to support Mr. Martinez's claim, this office must affirm the agency's denial of his request per Bowling , and prior decisions of this office. See 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"). Mr. Martinez's broader issues are not justiciable in this forum as the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; 14-ORD-023. Likewise, "objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an open records appeal. 10-ORD-178, p. 2; 12-ORD-162. Nor can this office direct a public agency to create records "or declare is failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 15-ORD-164.
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.
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