Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Summary : Kentucky State Penitentiary did not violate the Open Records Act by failing to provide records that do not exist.
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act when it denied inmate Chris Hawkins' request for a grievance he allegedly filed. For the reasons stated below, this office finds that KSP properly refused to provide the requested records because the records did not exist.
On July 15, 2019, Appellant requested KSP provide him a copy of a "grievance that [he] filed against Jewell Humphries in 2018 or 2019 and its disposition documents." On July 16, 2019, KSP denied his request, stating that "after a thorough search of the records and logs, no grievance was received from [Appellant] concerning Mr. Humphries in 2018 or 2019." This appeal followed.
KSP properly denied Appellant's request for records that did not exist. KSPaffirmed the records do not exist in its response to this appeal. KSP 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, KSP stated that it had searched through records and logs and no grievance was located. Because KSP 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.
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.