Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of inmate Rodney Smith's request for a copy of a reinvestigation of a disciplinary report. For the reasons stated below, we find that KSP did not violate the Act.
Inmate Rodney Smith ("Appellant") requested a copy of the "Re-Investigation of Disciplinary Report # KSP-2018-01623 Category 7 Item 4 that was performed by Lt. Samantha M. Wyatt on September 4, 2018." The written request was stamped as received by KSP on December 10, 2018. 1 On December 17, 2018, KSP timely responded to the request: "Per Cpt. Samantha Wyatt, your request has been denied. Cpt. Wyatt stated she did not perform, nor participate in a re-investigation concerning you or KSP-2018-016[2]3. No document exists as none was created by then Lt. Wyatt as requested above." This appeal followed.
Oran S. McFarlan, II, attorney, Justice & Public Safety Cabinet, responded on behalf of KSP. Mr. McFarlan stated that KSP fulfilled its obligations under the Open Records Act by conducting a good faith search for the alleged record upon receiving Appellant's request; determining that no responsive records existed; and then notifying him that there were no responsive records. Mr. McFarlan stated that KSP had located a reinvestigated disciplinary report involving Appellant regarding a "Category 7, Item 4 charge" where the re-investigation was performed by a different employee (Sgt. Paul Duncan) on a different date (October 12, 2018) than requested. KSP stated that Appellant may request that record by submitting a new request with appropriate payment authorization to KSP.
Analysis . The record establishes that KSP fulfilled its obligations under the Open Records Act by reviewing existing records to find documents meeting the description of the record requested; determining that no responsive records existed; and then notifying Appellant that there were no responsive records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). In the absence of legal authority requiring the creation of the requested record, or facts indicating the record was created, we see no need to require further explanation of the nonexistence of the requested record. See 11-ORD-091. Accordingly, we find no violation of the Open Records Act.
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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