Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Green River Correctional Complex cannot produce nonexistent handwritten report for copying, but violated KRS 61.880(1) in failing to conduct a reasonable search for the responsive record upon receipt of the request and failing to notify the requester that no such records existed.
Open Records Decision
The issue presented in this appeal is whether the Green River Correctional Complex ("GRCC") violated the Open Records Act ("Act") in its disposition of Leonel Martinez's ("Appellant's") request for records. For the reasons stated below, we find that GRCC did not commit a substantive violation of the Act when it did not produce a responsive record that does not exist. GRCC violated KRS 61.880(1) by failing to initially conduct a reasonable search for the responsive record and failing to advise Appellant that it does not exist.
On June 14, 2019, Appellant requested a copy of an investigation report related to his pending disciplinary action. Appellant described the requested report as, "the original report or authentic report written in hand...by Officer Ashley Knotts...on May 27, 2019[.]" On June 18, 2019, GRCC denied the request pursuant to KRS 61.878(1)(h), stating, "[t]his matter is currently under investigation, therefore the requested records are exempt and your request is denied at this time." However, GRCC had not yet searched for a responsive record. Appellant appealed this disposition on June 20, 2019.
Upon receiving notification of the appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of GRCC. Ms. Barker stated that she explained to GRCC that KRS 61.878(1)(h), "could not be used without an explanation of the harm that would be caused by release of the record." She stated that in response to her advice, "GRCC staff searched for the requested record and determined that no handwritten report was created." Ms. Barker attached a statement from GRCC Captain Angela Hernandez to describe the nonexistence of the responsive record. Cpt. Hernandez stated that she reported Appellant's disciplinary incident and, "[t]here was no handwritten report because [Officer Ashley Knotts] told me all of the events verbally and that's what I typed into the incident report." Cpt. Hernandez stated that she entered the investigation report into the KOMS system and no other reports existed other than camera footage. Citing prior decisions of this office, Ms. Barker argued that GRCC "cannot afford a requester access to a public record that it does not have or which does not exist," and "is not required to 'prove a negative' when explaining that it does not have a record or that the record does not exist."
Absent proof that a handwritten report exists, GRCC did not commit a substantive violation of the Act in denying Appellant's request. 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; 15-ORD-059; 17-ORD-223. GRCC is not required to produce a nonexistent record nor is the agency expected to "prove a negative" in order to refute a claim that a certain record exists. See Bowling , 172 S.W.3d at 341; 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"); 12-ORD-195. GRCC provided a detailed explanation for the nonexistence of the handwritten report, and described a reasonable search for the responsive record, on appeal. Appellant has not made a prima facie showing that the handwritten report exists. He "has produced no affirmative evidence, beyond mere assertions, that [GRCC] possesses [the handwritten report he] requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such record[ exists]." 09-ORD-214, pp. 3-4; 17-ORD-223. Accordingly, there was no substantive violation of the Act in denying the requested report as nonexistent.
However, GRCC violated KRS 61.880(1) by failing to advise Appellant that the handwritten report did not exist in its initial response after conducting a reasonable search for the responsive record. The Attorney General has consistently recognized that a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98; 09-ORD-214. Rather, the right to inspect attaches only 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. "[GRCC] cannot produce for inspection a record that never existed, but it is incumbent on [GRCC] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2. On those occasions when the records do not exist, the public agency's denial "should be premised on the records' nonexistence and not an exception that has no application ." Id . (Emphasis added).
In addressing the obligations of a public agency, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3 (emphasis added); 09-ORD-145; 10-ORD-215. Accordingly, a response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Act in affirmatively so indicating. 98-ORD-154, p. 2 ( citing 97-ORD-161, p. 3); 03-ORD-205, p. 3. It was "therefore incumbent on [GRCC] to ascertain whether records exist that [were] responsive to [Appellant's] request, to promptly advise him of its findings, and to release to him all existing [nonexempt] records identified in his request." 03-ORD-207, p. 3. Insofar as GRCC's initial response failed to affirmatively indicate whether a handwritten report existed, but rather denied the request based on an exception that had no application, it failed to fully discharge its duty under the Act.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.