Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus JonesAssistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act ("Act") in its disposition of the open records request submitted by inmate Chris Hawkins ("Appellant"). For the reasons stated below, we find no violation of the Act.
On January 31, 2019, Appellant submitted a Request to Inspect Public Records form seeking to inspect "updated memo that outlines procedures for me to use toilet in my cell. . .including how I get privacy and keep staff from viewing my nudity." On February 8, 2019, KSP Open Records Coordinator Catherine Weicht responded by stating that no such memorandum existed. Ms. Weicht directed Appellant to the KSP Legal Office where he could review correctional policies pertaining to cell procedures.
On February 12, 2019, Appellant appealed the disposition of his request. He stated that he presumed the existence of a responsive memorandum after a correctional officer directed him to remove a sheet hung inside his cell for privacy. Appellant argued that, otherwise, the correctional officer had "no authorized/documented reason for telling me to move my sheet [.]" Appellant also stated that a KSP Lieutenant told him "a documented rule existed stating that inmates can't use sheets at all" to obstruct the view into their cells. Appellant argues that with no guiding policy the correctional officers are intruding on his privacy to satisfy their own prurient interests.
On February 21, 2019, Attorney Julie Foster, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Foster provided confirmation that the Records Coordinator conducted a search for the requested record but could not locate a responsive memorandum. Ms. Foster then reiterated KSP'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 argued that Appellant's privacy arguments cannot be resolved in this forum, and she cited prior decisions of this office for support.
The record establishes that the KSP Records Coordinator made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," but was not able to locate a responsive record that meets Appellant's description. See 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. Appellant argues that some record must exist, but there are no grounds to find that KSP violated the Open Records Act. The Attorney General has long recognized that a public agency cannot afford a requester access to a nonexistent record or those records it does not have in its possession. 07-ORD-190, p.6, 06-ORD-040. 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"). In the absence of the requisite prima facie showing, or any evidence to suggest that the record does exist, we must support KSP's response to the request for records. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5.
With KSP having made a good faith effort to locate a responsive memorandum, we find no violation of the Act, regardless of whether the search yielded any results. Appellant "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses [the records that he] requested," or that KSP ever created such a record, 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. In the absence of any facts from which the existence of a responsive memorandum can be presumed, or any legal authority mandating the creation and of such a memorandum, the Attorney General affirms the agency's denial of this request.
Although Appellant believes that a responsive memorandum should exist, or currently does exist in KSP's custody or possession, the Attorney General will not adjudicate that dispute. See 16-ORD-195. Our scope of review in resolving disputes is defined by KRS 61.880(2)(a). 1 This office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. Further, we ordinarily "decline the invitation to invade the prerogative of public agencies in determining. . .what records they must create." See 95-ORD-48; 16-ORD-099; 12-ORD-019 n. 3. There is no evidence in the record on appeal to refute KSP's position that no additional responsive records exist, regardless of what he perceives are the motives of the correctional officers. Based upon the foregoing, this office affirms KSP's disposition of Appellant's request.
Regarding Appellant's allegations that correctional officers are intruding on his personal privacy, this Office must respectfully decline to address those issues. Such issues are outside of the scope of our review and cannot be considered in the context of an open records appeal. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in adjudicating disputes arising under the Open Records Act, and this office is without authority to deviate from that statute. Therefore, we decline to address the privacy-related issues.
A party aggrieved by this decision may appeal it 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.
Footnotes
Footnotes
1 KRS 61.880(2)(a) states: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."