Opinion
Opinion By: Andy Beshear,Attorney General,Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lee Adjustment Center ("LAC") violated the Open Records Act in the disposition of Derek McStoots' undated request for "a copy of all items that I currently have listed on my KOMS [Kentucky Offender Management System], in relation to my personal property." LAC received the request on February 26, 2019, and issued a timely written response on March 4, 2019, per KRS 197.025(7). Inmate Records Specialist Jordan Turner stated, "provided is your LAC Intake Property Form and vendor order receipts since you have been at LAC (a total of four pages)." Specifically, he included the "Intake Property Form," 1 two Walkenhorst's invoices, and a copy of a packing slip documenting the shipment of certain items to Mr. McStoots at LAC. In his March 7, 2019, letter of appeal, Mr. McStoots alleged that his request was prompted by the actions of an Internal Affairs Officer who confiscated property "that rightfully and legally belonged" to him, specifically a Sony PlayStation, without providing an "Unauthorized Property Form." He further maintained that LAC was required to provide him with a copy of an itemized property listing available on KOMS.
Upon receiving notification of Mr. McStoots' appeal, G. Edward Henry, II responded on behalf of LAC in his capacity as legal counsel for CoreCivic, Inc., which owns and operates LAC. Mr. Henry first stated that Mr. McStoots asked for specific records from KOMS and LAC provided those records. He further explained, "Mr. McStoots does not realize that only [LAC] scans and copies inmate property documents and loads them into KOMS. None of the other Kentucky Department of Corrections ["DOC"] facilities undertake that practice. Accordingly, there are no property documents from other [DOC] institutions that [LAC] could have provided to Mr. McStoots." Insofar as Mr. McStoots is apparently seeking to prove that he purchased a gaming system while housed in a different facility, Mr. Henry advised that he should request it from the DOC facility where he purchased that item. As further support for his position that LAC does not possess any other documents responsive to Mr. McStoots' request, Ms. Henry noted that Mr. McStoots did not possess a Sony PlayStation when he was admitted to LAC, as the Inmate Property Form provided to him confirms; nor has Mr. McStoots ordered a gaming system while housed at LAC. Accordingly, Mr. Henry reiterated that no documents exist in the possession of LAC or that LAC can access through KOMS that LAC could have provided to Mr. McStoots beyond those already provided.
This office has consistently recognized that a public agency such as LAC 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 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. Thus, a public agency is not 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"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed) ; 07-ORD-188; 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"); Cabinet for Health and Family Servs. v. Todd Cty. Std., 488 S.W.3d 1 (Ky. App. 2016)(affirming opinion and order enforcing 11-ORD-074); 12-ORD-195.
Under the circumstances presented, 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 cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3; 12-ORD-087. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
When, as in this case, a public agency has denied that any responsive public records exist, aside from those already provided, after making "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 2 and the record on appeal does not contain any undisputed facts or evidence from which existence of additional records can be presumed, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 12-ORD-030; 12-ORD-161. A public agency such as LAC violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist, following a reasonable search, and explaining why, if appropriate, just as LAC did here. 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. Mr. McStoots "has produced no affirmative evidence, beyond mere assertions, that [LAC] possesses such records as [he] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no [additional] records exist." 09-ORD-214, pp. 3-4; 15-ORD-046. Accordingly, this office affirms the disposition of Mr. McStoots' request.
Either party may appeal this decision 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.
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