Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Lee Adjustment Center did not violate the Open Records Act in denying a request for a nonexistent record, and was not required to "prove a negative" in order to refute an unsubstantiated claim that the record was created. However, LAC initially violated KRS 61.880(1) by failing to confirm or deny whether the record existed, and was unable to discharge this duty because it did not conduct a search for the record, but LAC remedied this deficiency on appeal.
Open Records Decision
The question presented in this appeal is whether Lee Adjustment Center ("LAC") violated the Open Records Act in the disposition of JaQue Abrams' request for one copy of the recording of a telephone conversation with someone identified with a specified telephone number on May 28, 2019, which it received on June 6, 2019. LAC did not violate the Open Records Act in ultimately denying the request based on the nonexistence of the recording, but initially violated KRS 61.880(1) by failing to confirm or deny its existence following a reasonable search.
Inmate Records Specialist Jordan Turner issued a timely written response per KRS 197.025(7) on June 12, 2019. Mr. Turner denied the request based on KRS 197.025(1), stating, "phone records and the appropriate documentation of such are created and maintained for the purpose of institutional security," and referencing prior decisions by this office. In his undated letter of appeal, Mr. Abrams indicated that he requested "a copy of my phone conversation with my attorney on this date, May 28-2018." (Emphasis added). He further stated, "All phone calls are recorded because we (inmates) have to put an inmate pass number like a pin to be allowed to make the call."
Upon receiving notification of Mr. Abrams' appeal, G. Edward Henry, II, counsel for CoreCivic, Inc., responded on behalf of LAC. Mr. Henry first noted that Mr. Abrams did not identify the specified telephone number as being that of "his attorney or a legal entity" until he initiated this appeal. Upon learning that information, LAC "researched the telephone number to determine whether the phone call was or could have been recorded pursuant to inmate/legal counsel privacy concerns." LAC determined that Mr. Abrams did make a telephone call to said number, "but it was noted as private and therefore not recorded." Mr. Henry included a copy of the Call Detail Report for verification. He further explained that LAC ultimately determined the number was that of the Kentucky Department of Public Advocacy ("DPA"). At its request, LAC has designated the number as private since January 29, 2019, "and no recordings have been made of any telephone calls placed to that number pursuant to those directions." Accordingly, no recording of the specified telephone conversation exists. 1
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) ("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. 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"). 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.
However, in construing KRS 61.880(1), the Court of Appeals held: "The language of the statute 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). As the Court recognized, a "limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id .; 01-ORD-183, pp. 2-3; 07-ORD-139; 11-ORD-158. Thus, in addressing the obligations of a public agency denying access to public records based upon their nonexistence or its lack of possession, this office has consistently 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 (internal citations omitted); 12-ORD-162. 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; OAG 90-26, p. 4; 09-ORD-145; 10-ORD-215. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but a public agency discharges its duty under the Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3; 04-ORD-205, p. 4; 09-ORD-145.
"[LAC] cannot produce for inspection a record[s] that never existed, but it is incumbent on the [agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2; 15-ORD-109; 17-ORD-204. Insofar as LAC initially failed to state affirmative that no recording existed in the possession of the agency, its original response was deficient. LAC did not allege that it was unable to conduct a search based on the criteria provided or ask Mr. Abrams to clarify his request. Instead, LAC assumed the recording existed and was exempt per KRS 197.025(1). See 09-ORD-145; 16-ORD-104; 17-ORD-204; 18-ORD-175; 19-ORD-113. The agency was unable to discharge this duty because it failed to conduct a reasonable search to locate any such recording before denying the request. See 13-ORD-205; 14-ORD-045; 15-ORD-178; 16-ORD-255. Compare 15-ORD-167. However, LAC ultimately discharged its duty on appeal in conducting a reasonable search utilizing the additional information that Mr. Abrams provided, notifying him that no such recording existed, and providing a credible explanation for the nonexistence of the recording. See 16-ORD-258; 17-ORD-204; 18-ORD-175. Accordingly, this office affirms the agency's ultimate disposition of Mr. Abrams' request. See 19-ORD-113.
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.
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