Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Lee Adjustment Center ("LAC") violated the Open Records Act in its disposition of inmate Alexander Ruff's open records request for documents pertaining to an internal investigation. For the reasons stated below, we find that LAC initially violated the Act by failing to affirmatively advise the requester that no responsive records existed, but corrected its error on appeal by explaining that there was no investigation regarding the requester, and thus no responsive records exist.
On November 21, 2018, inmate Alexander Ruff ("Appellant"), made a request for records pertaining to an internal investigation where "IA Clifton . . . opened up my outgoing mail. " LAC responded to the request by stating that the disclosure of "any investigation whether resolved or ongoing" would constitute a security threat to inmates, staff, and the institution. The response cited KRS 197.025(1) as its statutory basis for denying the request. Appellant appealed that denial to this office.
G. Edward Henry, II, attorney, responded to the appeal on behalf of LAC. He explained that LAC does not have any investigation underway regarding Appellant and has not conducted an investigation in the past regarding him. LAC explained that mail may be opened 1 if it appears suspicious. Corrections Policies and Procedures, CPP 16.2, II.A.2.b. permits correctional facilities to open inmate mail to determine whether it contains contraband or is otherwise in violation of prison rules.
LAC is not required to produce nonexistent records nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist. Bowling v. Lexington-Fayette Urban Cty. Gov't., 172 S.W.3d 333 (Ky. 2005). See 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 [Kentucky State Reformatory] to create or maintain" the records being sought from which their existence could be presumed). 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" ); 11-ORD-074 (recognizing that the "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"). However, LAC's initial response failed to state that no records responsive to the request existed. The inability of LAC to produce the investigative records because of their nonexistence was "tantamount to a denial and . . . it was incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019; 14-ORD-045.
As the Attorney General has consistently recognized, 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. Rather, the right to inspect attaches only 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. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3; 09-ORD-145; 10-ORD-215. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3; 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145.
"[LAC] cannot produce for inspection a record[s] that never existed, but it is incumbent on the [agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2; 15-ORD-109 (Kentucky State Reformatory committed a procedural violation of the Act in failing to conduct an "appropriate search" for the document requested as it did not realize no responsive document existed, "but merely denied the request based on what a hypothetical [document] might contain"). On those occasions when the records do not exist, LAC's denial of the request "should be premised on the records' nonexistence and not an exception that has no application." Id. 12-ORD-013; 15-ORD-109 ("security exemption" did not excuse the failure by Kentucky State Reformatory "to locate any responsive records and assess their exempt or nonexempt status"); 15-ORD-178. Insofar as LAC initially failed to affirmatively indicate whether any responsive records existed, it failed to fully discharge its duty under the Open Records Act. In responding to Appellant's request, LAC did not discharge this duty because it apparently failed to conduct a reasonable search to locate any responsive document(s) before denying the request. See 13-ORD-205; compare 15-ORD-167. However, LAC ultimately discharged its duty under the Act by notifying Appellant that no responsive records existed, and providing a credible explanation for the nonexistence of such documents; nothing else is required.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to 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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