Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act ("Act") in its disposition of an open records request submitted by inmate Uriah M. Pasha ("Appellant"). For reasons stated herein, we find that KSR made records available to appellant after locating them during this appeal thus rendering issues related to those records moot, pursuant to 40 KAR 1:030 Section 6. 1 We also find that KSR did not violate the Act when it denied the requests for a transfer authorization record that does not exist.
On May 10, 2019, Appellant submitted a Request to Inspect/Receive Public Records form seeking two records. Appellant sought, "[a] copy of the Incident Report used to generate Disciplinary Report DR # KSP-2019-01150...; and the Authorized Transfer Form(s) that authorized...[my] transfer to KSR 4/18/19 but was cancelled." On May 13, 2019, KSR denied the disciplinary report as preliminary, arguing that the disciplinary action was still pending. KSR denied the request for the transfer form, stating: "[t]here is no transfer authorization form dated for 4/18/2019 to KSR in your KOMS file...[h]owever there is one dated 2/21/2019 for a transfer to KSR." KSR asked Appellant to submit a new records request form and money authorization if he was seeking a copy of the February 21, 2019 transfer form. On May 28, 2019, Appellant appealed the disposition of his request arguing that both forms exist and KSR should make them available.
On June 12, 2019, KSR responded to the appeal through counsel, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet. Ms. Barker stated that the responsive incident report is now available to Appellant. She stated that the disciplinary action arose at Kentucky State Penitentiary ("KSP"), and, "[t]he disciplinary report has now been dismissed...KSR will agree to obtain the record from KSP upon receipt of a correctly completed money authorization for payment of the cost for the copies." Ms. Barker stated that Appellant can personally also obtain the incident report by sending an open records request and money authorization for 75 cents ($ 0.75) to the KSP records custodian. Regarding an April 18, 2019 transfer authorization form, Ms. Barker argued that the record does not exist because its creation was not necessary. Ms. Barker stated that she contacted KSP open records coordinator and learned that an existing transfer authorization form permitted the transfer, so KSP did not create an additional authorization form. Ms. Barker confirmed that a copy of the February 21, 2019 transfer authorization form is available to Appellant.
This matter is moot regarding Appellant's request for the investigation report, pursuant to 40 KAR 1:030 Section 6. After the filing of the appeal, KSR made the report available to Appellant, upon receipt of payment.
KSR complied with the Act when it denied Appellant's request for the April 18, 2019 transfer authorization form because the record does not exist. KSR cannot produce nonexistent records for inspection or copying. See
Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. 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. A public agency cannot afford a requester access to records which it does not have, or which do not exist. 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150; 09-ORD-088; 04-ORD-043.
However, to satisfy their burden of proof under KRS 61.880(2)(c), 2 public agencies must offer some explanation for the nonexistence of the records. See 01-ORD-38; 04-ORD-075; 12-ORD-231. When it is determined that agency records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence.
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195; 15-ORD-210. KSR satisfied its burden by searching for a responsive record, and informing Appellant that KSP relied on an existing form rather than creating a new authorization. KSR also informed Appellant that the record is available upon his request. KSR met its burden of proof and provided a sufficient explanation for the nonexistence of an April 18, 2019 transfer authorization form.
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
1 40 KAR 1:030, Section 6 states: "Moot complaints. If 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."
2 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."