Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
Linden St. Clair ("Appellant") initiated this appeal on April 11, 2019 challenging the inaction of the Kentucky River Regional Jail ("KRRJ"). We find that KRRJ violated KRS 61.880(1) in failing to issue a timely written response to Appellant's open records requests. Issues relating to records produced during the appeal are now moot. However, the record on appeal contains insufficient proof that KRRJ conducted an adequate search for the responsive records that were denied as nonexistent, as required by KRS 61.880(2)(c) . 1
On March 15, 2019, Appellant submitted an open records request to KRRJ seeking nine records he described as follows:
1. KRRJ cell camera video files of my cells during my time in jail;
2. All video files from KRRJ security cameras, hall cameras, or other video recording devices during all the times when I was being recorded;
3. All audio files KRRJ may have relating to my booking, stay in jail, and release;
4. All booking records, deputy reports, or any other written records you may have relating to my booking, time in jail, and release;
5. Recordings of me using your phone(s) and tablet(s);
6. Record of all personal effects kept by you during my imprisonment at KRRJ;
7. My mugshot;
8. Any other inter-departmental records relating to me, including any which mistakenly call me John Doe; and
9. Any other inter-agency records relating to me.
Appellant appealed to this office, stating he had received no response to these requests. During the appeal, KRRJ acknowledged that it did not respond. However, KRRJ indicated that upon learning of the appeal, it conducted a search for responsive records and provided Appellant copies of responsive records. Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, 2 Section 3, the Attorney General requested that KRRJ provide copies of the records to this office for substantiation.
On April 22, 2019, KRRJ Administrator Lonnie Brewer provided copies of the responsive records to Appellant and this office. Mr. Brewer included a brief written statement explaining KRRJ's disposition of each request. He explained that KRRJ located and disclosed copies of the records responsive to requests 4, 7, 8, and 9. However, he stated that KRRJ denied requests 1, 2, 3, 5, and 6, stating responsive records are nonexistent. Regarding requests 1 and 2, Mr. Brewer stated that no records existed "due to the overwriting after 45 days." Mr. Brewer stated that no records were available for request 3 because the "jail does not have audio files." Regarding requests 5 and 6, Mr. Brewer stated that no records exist because Appellant did not use the "video visit and telephone services[,]" and "remained in the booking area until his release." However, KRRJ did not describe the search for responsive records or provide evidence to support Mr. Brewer's statements regarding the nonexistence of responsive records.
KRRJ violated KRS 61.880(1) by failing to respond to Appellant's requests. As a public agency, KRRJ must comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests made under the Open Records Act. Pursuant to KRS 61.880(1):
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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 . An agency 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 . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) The language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A public agency such as KRRJ is not permitted to elect a course of inaction. See 17-ORD-129. The Attorney General has consistently recognized that procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3 (citing 93-ORD-125, p. 5); 05-ORD-190; 09-ORD-186; 12-ORD-085. Failing to respond to an open records request, as KRRJ did here, violates the mandatory requirements of the Act.
During the course of the appeal, KRRJ provided Appellant copies of the existing records responsive to requests 4, 7, 8, and 9. Pursuant to 40 KAR 1:030 Section 6, "[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Therefore, issues relating to those records are now moot.
However, we find that KRRJ did not meet its burden of proof relating to the requests denied as nonexistent. This office has consistently recognized that 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. However, in addressing the obligations of a public agency when denying access to public records based upon their nonexistence, we have observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial[.]" 01-ORD-38, p. 9 (other citations omitted); 12-ORD-162. The burden of proof in an open records appeal is imposed on the public agency, pursuant to KRS 61.880(2)(c). In keeping with that burden, the public agency must offer some explanation for the nonexistence of the records. See 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" ); 94-ORD-141 (In order to satisfy its statutory burden of proof, a public agency must document what efforts were made to locate the missing records).
In determining what constitutes a sufficient explanation for the nonexistence of records, we have found that a public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). Therefore, the agency must expend reasonable efforts to identify and locate the requested records. In this case, KRRJ did not describe its search for responsive records. The agency failed to indicate that any type of reasonable search was conducted to locate potentially responsive records. KRRJ also failed to adequately explain the nonexistence of responsive records. We have no reason to doubt the expertise of the KRRJ Administrator and his statements regarding the nonexistence of records based on the jail's record maintenance policies. However, KRRJ did not provide any evidence verifying the Administrator's knowledge and the expertise underlying his statements. As such, KRRJ failed to satisfy its burden of proving an adequate search as required by KRS 61.880(2)(c).
In 10-ORD-051, a copy of which is attached hereto and incorporated by reference, this office determined that the record on appeal contained insufficient proof that the agencies to which requests were directed "conducted an adequate search for records presumed to exist." This office ultimately concluded that the Attorney General could not "approve agencies' denials based on the records' apparent nonexistence in the absence of such proof." 10-ORD-051, p. 1. The parties to this appeal provide no basis for departing from this precedent. Accordingly, we find that KRRJ violated the Act by failing to prove that it had made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]" 11-ORD-031, p. 3, citing 95-ORD-96, p. 7.
Either party aggrieved by 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