Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections ("DOC") violated the Open Records Act in the disposition of Beth Smith's December 13, 2018, request. Ms. Smith, Multimedia Journalist for The Gleaner , asked for "copies of public records involves [sic] email correspondence, memos, letters or digital recordings between employees in the Henderson County Probation and Parole Office and the Union County Probation and Parole Office and their supervisors regarding Ashley Yates and any alleged wrongdoing, illegal acts or general concerns regarding her behavior while at work[,]" between the months of March 2018 and December 2018. Based upon the following, this office finds that DOC violated the Open Records Act in failing to either comply with all requirements of KRS 61.880(1), or properly invoke KRS 61.872(5), if appropriate. DOC also subverted the intent of the Act under KRS 61.880(4) in failing to provide timely access to records it ultimately provided. However, DOC cannot provide that which it does not have, and therefore did not violate the Act in denying access to nonexistent records.
By letter directed to Ms. Smith on December 17, 2018, Open Records Request Coordinator Katherine Williams responded on behalf of DOC, stating that DOC would "require additional time to respond." Citing KRS 197.025(7), Ms. Williams indicated that DOC had five days, excluding weekends and holidays, in which to issue a written response to a request made under the Open Records Act; 1 she also referenced 501 KAR 6:020, Corrections Policy & Procedure (CPP) 6.1, VI.D.1.c., pursuant to which, "If the public record is unavailable, the custodian shall respond in compliance with KRS 197.025(7), including a statement of the date when the record will be available and an explanation of the delay." In attempting to justify the delay, Ms. Williams indicated that DOC would "need additional time to identify and search emails, as well as make any necessary redactions to the documents you requested. Due to the request being processed through the Commonwealth Office of Technology ["COT"], it will take much more time to process." DOC stated that it would send a final response "no later than February 7, 2019." However, by letter dated February 5, 2019, DOC again stated that additional time was necessary, quoting KRS 197.025(7) and 501 KAR 6:020, CPP 6.1, VI.D.1.c. Ms. Williams stated, "Our IT department has advised that they need additional time to process this request. We will have a response to you no later than February 19, 2019." As of February 25, 2019, however, Ms. Smith had received neither any of the records in dispute nor any further correspondence from DOC. This appeal followed.
Upon receiving notification of Ms. Smith's appeal, Staff Attorney Oran S. McFarlan, III responded on behalf of DOC. Mr. McFarlan first explained that Ms. Williams issued a final response on February 25, 2019, a copy of which he attached. In the February 25 letter, Ms. Williams advised that DOC located responsive documents, including 39 pages of e-mails. However, she asserted that "no memos, letters, or digital recordings were found." She further explained that information contained in the subject e-mails "that related to official duties of probation and parole officers was redacted and training documents removed," but did not cite KRS 439.510 or KRS 61.878(1)(l), pursuant to which KRS 439.510 is incorporated into the Open Records Act. Paraphrasing the language of KRS 61.878(1)(a), Ms. Williams indicated that she had also redacted personal e-mail addresses. In addition to Ms. Williams' February 25 letter, Mr. McFarlan included a copy of a March 1, 2019, e-mail thread in which Ms. Williams indicated to Ms. Smith that she was attaching the documents in PDF "as a courtesy." She agreed to mail a hard copy upon receipt of payment. See KRS 61.874(1). 2
As a threshold issue, Mr. McFarlan asserted, Ms. Smith's appeal is moot per 40 KAR 1:030 Section 6 as to e-mails that DOC provided without any redactions. With regard to nonexistent memos, letters or digital recordings, Mr. McFarlan argued, "it is well-settled that a public agency cannot afford a requester access" to nonexistent records or those which it does not possess. Relying upon a line of decisions by this office, he maintained that a public agency is not required to "prove a negative" in order to refute a claim that certain records exist. Mr. McFarlan confirmed that DOC redacted the last four digits of Ms. Yates' social security number and her personal e-mail address from certain documents per KRS 61.878(1)(a), citing 06-ORD-031 and 14-ORD-197. Lastly, he advised that DOC redacted sections of the subject e-mails that "were prepared by a probation and parole officer from information obtained by probation and parole officers," pursuant to KRS 61.878(1)(l), incorporating KRS 439.510. He further noted that prior decisions of this office affirmed the denial of requests for probation and parole records under this authority. Inasmuch as the information redacted was obtained by probation and parole officers in discharging their duties, and some information related to specific cases, DOC maintained that its redaction of such information was appropriate under KRS 439.510.
In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." (Emphasis added). A public agency cannot generally postpone this deadline. 01-ORD-140, p. 3. The DOC's December 17, 2018, response to Ms. Smith's December 13, 2018, request was timely under KRS 61.880(1), but otherwise deficient, as it failed to either provide access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records that DOC withheld. DOC failed, in the alternative, to properly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), by citing that provision and providing not only a specific date by which documents would be made available, but also a detailed explanation of the cause for delay in producing any existing responsive documents. See 12-ORD-151; 13-ORD-035; 16-ORD-153.
"[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-153. KRS 61.872(5) supports this position, authorizing postponement of access to public records beyond three business days only "[i]f the public record is in active use, in storage or not otherwise available." Under those circumstances, "the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5); 01-ORD-140. Absent from both of DOC's initial responses was any reference to KRS 61.872(5); DOC did not invoke KRS 61.872(5) on appeal. 3 DOC also failed to satisfy all of the requirements of this exception to KRS 61.880(1), and therefore committed a procedural violation of the Act. See 18-ORD-076.
Although DOC specified the date by which records would be made available on both occasions, it did not specify which permissible reason for delay applied, if any, or to what extent. See 12-ORD-211; 13-ORD-074; 15-ORD-174; 16-ORD-206. Compare 17-ORD-252. Merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2; 16-ORD-206. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.'
Lexington-Fayette Urban Cnty. Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3. See 02-ORD-217 (agency response was not sufficiently detailed as it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request"); 12-ORD-043; 13-ORD-168. DOC first stated that it needed "additional time to identify and search emails, as well as make any necessary redactions. " The only additional information it provided was that "much more time" was necessary because the request was being processed through COT. In extending its own deadline of February 7, by letter dated February 5, DOC merely indicated that its "IT Department" needed additional time. Ultimately, DOC again failed to provide the documents by February 19, the second deadline, which prompted this appeal on February 25.
"Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. The need to review and redact did not constitute a detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay. 4 15-ORD-029, p. 3; 02-ORD-217; 10-ORD-138; 16-ORD-206. While a reasonable extension of time may have been justified, the record on appeal is devoid of sufficiently detailed facts upon which to base such a finding or justify a delay of more than two months. See 10-ORD-138 (the record on appeal was "devoid of any detailed explanation for why the retrieval and redaction should take so long," and thus deficient) . "In the absence of a legitimate detailed explanation of the cause for delaying access" for approximately two and one-half months, the Attorney General finds that Ms. Smith "did not receive 'timely access' to the records eventually provided." 13-ORD-052, pp. 6-7; 15-ORD-141.; 16-ORD-206.
However, this office has no basis upon which to conclude that DOC violated the Act in denying access to nonexistent memorandums, letters or digital recordings. The right to inspect records, and the corollary right to receive copies, only attaches 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; 04-ORD-205. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-037; 16-ORD-134. 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 ("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"). Ms. Smith, the complainant, has made no showing in this case. Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231. This office has declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." 5 OAG 89-81, p. 4.
"Absent proof that [DOC] failed to use methods which could reasonably be expected to produce the records requested, such as anecdotal evidence suggesting the records' existence or production of responsive records obtained from other sources," the Attorney General has no basis upon which to question its good faith. 12-ORD-153, p. 4; 17-ORD-082. Based upon the foregoing, this office finds that DOC subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4), in failing to provide Ms. Smith with timely access to existing responsive documents ultimately released. However, the record on appeal does not support a finding that DOC committed a substantive violation of the Act.
Either party may appeal this decision may appeal 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 Pursuant to KRS 197.025(7), " KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available."
2 Ms. Smith initiated the instant appeal because of DOC's failure to provide a final written response, including copies of all existing nonexempt documents responsive to her December 13, 2019, request by February 19, 2019. Accordingly, this office contacted Ms. Smith via e-mail on March 6, 2019, to confirm that she had received Ms. Williams' February 25, 2019, letter, which apparently crossed in the mail with Ms. Smith's February 25, 2019, appeal. She confirmed that she "received some of the documents." However, Ms. Smith asserted that she had "reason to believe that not all of the documents were included." She did not provide any objective proof in support of this position. For this reason, however, she did submit a new request per the suggestion of Mr. McFarlan, the disposition of which is not presently at issue. Accordingly, our analysis will focus on the disposition of Ms. Smith's December 13, 2019, request per KRS 61.880(2).
3 Although KRS 197.025(7) modifies the three-day period to a five-day period, the requirement to provide the detailed explanation is not negated." 17-ORD-262, p. 2, n. 1. See 18-ORD-144 (KRS 197.052(7) modifies the statutory period for a response by DOC and the agencies under its jurisdiction, but " KRS 61.872(5) requirements continue to apply to correctional facilities [and DOC]").
4 Until its appeal response, DOC also failed to provide the specificity required under KRS 61.880(1), pursuant to which a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." See KRS 61.880(2)(c); Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996)( KRS 61.880(1) "requires . . . particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."); 04-ORD-106, p. 6; 13-ORD-051.
With regard to application of KRS 439.510, this office refers the parties to 17-ORD-019. Ms. Smith has not challenged the agency's reliance on this confidentiality provision and further discussion is unnecessary. Likewise, Ms. Smith has not challenged the agency's invocation of KRS 61.878(1)(a); the analysis contained in 14-ORD-197 is controlling on this question.
5 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted); 18-ORD-164. Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087. "In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7 (citation omitted). The Attorney General trusts "that [DOC] directed its search not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." 12-ORD-153, p. 4; 18-ORD-164. Compare 15-ORD-210.