Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Summary : The Department of Corrections violated the Open Records Act by failing to respond and affirmatively deny the existence of requested records. However, the Department of Corrections corrected the error on appeal by affirmatively denying existence of records and explaining the steps taken in making a good faith search for the records.
Open Records Decision
The question presented in this appeal is whether the Department of Corrections ("DOC") violated the Open Records Act in denying James Harrison's June 17, 2019, request for records. For the reasons that follow, DOC committed a procedural violation of the Act but did not substantively violate the Act by issuing a late response.
On June 17, 2019, Appellant submitted an open records request to DOC for "the disposition taken on each of [his] administrative appeal/complaints dated May 17, 2019[,] May 30, 2019[,] and June 7, 2019." DOC did not respond and Appellant initiated this appeal on July 8, 2019. On July 18, 2019, DOC responded that it had misplaced the open records request, but responded to Appellant after it received notice of this appeal. In its response to this appeal, DOC stated that no such requested record exists and explained its search for the records in Appellant's offender file.
As a preliminary matter, DOC's failure to respond to Appellant's June 17 request for records constitutes a violation of KRS 197.025(7). In relevant part, that statute provides: "upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays."
The procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Thus, DOC procedurally violated the Act by failing to respond to Appellant's request within three (3) days.
As to the substantive issue, DOC properly denied Appellant's request for records that do not exist and cured the procedural violation by affirming the records do not exist in its response to this appeal. DOC 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; 06-ORD-040; 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. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records. See
Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. Here, DOC stated the record did not exist and explained where it looked for such a record, in Appellant's inmate file. DOC affirmed this statement on appeal. Because DOC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no responsive records existed in the custody or possession of the agency. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030.
Although DOC's initial failure to respond constitutes a procedural violation, it did not substantively violate the Act in denying Appellant's request for nonexistent records.
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 proceedings.