Opinion
Opinion By: Andy Beshear,Attorney General,Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act in denying an open records request submitted by Appellant Uriah Pasha. For reasons stated herein, we find that KSP did not violate the Act in denying a request for records that did not exist.
On December 14, 2018, Appellant submitted a Request for Inspection of Records form to KSP with three requests, two of which were granted and are not at issue. As to the request at issue here, Appellant requested the "central office response" to his classification appeal. KSP received the request on December 21, 2018, and timely responded on January 3, 2019. 1 KSP requested more time and fully responded to the Open Records request on January 10, 2019. In relevant part, KSP denied Appellant a copy of the "central office response", stating that, "after a careful search in KOMS [(Kentucky Offender Management System)], no response could be located." In response to this appeal, the Justice and Public Safety Cabinet confirmed that KSP did not possess the record in question.
KSP complied with the Act when it denied Appellant's request for his classification report because such a report did not exist; KSP cannot produce nonexistent records for inspection or copying. See Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. The Attorney General has long recognized that a public agency cannot grant a requester access to nonexistent records. 07-ORD-190, p.6; 06-ORD-040; 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150; 09-ORD-088; 04-ORD-043. However, in order to satisfy the burden of proof imposed by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195.
KSP affirmatively stated that the requested records did not exist in its response to Appellant's open records request and stated where and how it searched for the records. Accordingly, we find that KSP complied with the requirements of the Open Records Act.
Finally, Appellant seems to argue that that if KSP does not possess a responsive record from central office, it should. But whether KSP should possess a response from central office may not be adjudicated in an open records appeal. When a public agency denies that any responsive document exists in the agency's possession or control, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 17-ORD-215. Here, "there is no statutory authority cited, and none located, that requires the creation of the requested handwritten report." 12-ORD-046. See also 11-ORD-091. In light of no cited or known authority to keep such a record, this office may only determine whether KSP complied with the Open Records Act. 99-ORD-121. KSP did not violate the Open Records Act and whether or not it failed to create or possess a record in question is not relevant to that determination.
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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