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 the open records requests of inmates Rodney Bixler and Eugene Jackson regarding strip search records. For the reasons stated below, we find that LAC procedurally and substantively violated the Act, but corrected the violations on appeal.
Mr. Bixler requested a copy of a strip search log where he was the subject of a search that was conducted on December 15, 2018. LAC denied the request on December 24, 2018, stating that Mr. Bixler's name was not listed on any strip search log sheet for December 15, 2018. LAC stated that "[i]t is possible the log sheet has not been turned in." Mr. Bixler appealed that response to this office on January 5, 2019, stating that CPP [Corrections Policies and Procedures] 9.8 requires strip searches to be logged and include the name of the person conducting the search, the date and the time. As Mr. Bixler had been searched, he asserted that there should be a strip search log regarding that search. Eugene Jackson, also an inmate at LAC, submitted a substantially identical request for the log documenting his strip search on December 15, 2018, and received a response from LAC identical to that received by Mr. Bixler. Mr. Jackson appealed that denial to this office on January 7, 2019. Because the appeals of Mr. Bixler and Mr. Jackson ("Appellants") arise from a nucleus of common facts, they are consolidated for purposes of open records analysis.
G. Edward Henry, attorney, responded to the appeals on behalf of LAC. LAC stated there was a search conducted of the west dorm where Appellants were inmates on December 15, 2018, and while inmates were strip searched at that time, LAC did not create a log of any strip search of Appellants.
On January 25, 2019, this office sent letters to LAC requesting information under the authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. The letters for each appeal requested that, as Appellants had been strip searched on December 15, 2018, and CPP 9.8 1 requires strip searches to be logged, it was necessary for LAC to explain why the strip searches were not documented as required by CPP 9.8.
LAC responded to our requests for information on February 13, 2019, providing written statements from Case Manager Banks and Correctional Officer Woodley. The written statements by Banks and Woodley each admitted that they had performed strip searches of the Appellants on December 15, 2018, but that they did not log the searches as they were not aware of the requirement to log strip searches.
Analysis . The Attorney General has consistently recognized that 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. 2 In order to satisfy the burden of justifying its denial per KRS 61.880(2)(c) 3, however, a public agency must offer some explanation for the nonexistence of the records in dispute at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. This office has recognized 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." 4 11-ORD-074, p. 2; 12-ORD-195. The agency can overcome this presumption by explaining why the record does not exist. Id. In Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals approved this position, 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. " See 12-ORD-195.
Where, as in this appeal, "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," this office has found that a public agency's response "was deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s)[.]" 11-ORD-111, pp. 3-4 (review of applicable statutes confirmed that agency should have possessed certain records and the agency had "not even attempted to overcome the presumption by explaining why the 'hoped-for record[s' do] not exist"); 11-ORD-074, pp. 3-5; 15-ORD-210. Compare 12-ORD-209. Because the agencies' responses were, at best, "limited and perfunctory, " 5 under the circumstances presented in each of those cases the Attorney General found those responses both substantively, as well as procedurally, deficient. 11-ORD-111, p. 5 (quoting 11-ORD-074). The Office would reach the same conclusion here, but for LAC's response to our request for information where LAC provided an explanation for the nonexistence of the strip search logs.
In this instance, it is clear that LAC was aware that the requested records should exist, as strip searches were conducted of Appellants and CPP 9.8 requires a log be made of such searches. 6 However, LAC issued a perfunctory response to both of the Appellants' requests that failed to explain why the strip search logs were either not in existence or were not found. These failures to explain the nonexistence of the strip search logs constituted procedural as well as substantive violations of the Act. 11-ORD-111; s ee 12-ORD-192 (omission by the agency of explanation for nonexistence of appraisal statutorily presumed to exist constituted a substantive violation of the Act); 15-ORD-210. Compare 12-ORD-162 (Oldham County Planning and Development Services initially violated KRS 61.880(1) in failing to affirmatively indicate that written statements required under KRS 147A.027 did not exist, but ultimately explained the reason that no such records were created ). (Emphasis added). LAC's initial responses to the records requests and its initial responses on appeal were deficient. However, we find that LAC, in response to our request for information, provided an explanation for the absence of the records that CPP 9.8 required be created, and corrected the substantive violations of the 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.
Footnotes
Footnotes