Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Barren County Detention Center cannot provide a nonexistent policy for inspection or copying and its ultimate disposition of the subject request is affirmed on that basis. BCDC initially violated the Open Records Act in failing to either comply with all requirements of KRS 61.880(1), or properly invoke KRS 61.872(5), if appropriate, by citing that provision, giving a detailed explanation of the cause for delay, and specifying the date when the record would be available.
Open Records Decision
The question presented in this appeal is whether the Barren County Detention Center ("BCDC") violated the Open Records Act in the disposition of Robert W. McKinney's August 1, 2019, request for "[BCDC's] 'Prisoner Fee and [E]xpense [R]eimbursement Policy' approved by [Barren County Fiscal Court] that was in effect and approved pursuant to KRS 441.265(2) [and] that was in effect between the dates of 11-1-2004 to 3-17-2006 as described in Melton v. Com., 2016-SC-000552 (2018)." Based upon the following, this office affirms the ultimate disposition of Mr. McKinney's request based upon the nonexistence of the requested policy.
In a letter directed to Mr. McKinney on August 2, 2019, Captain Juanita Adwell acknowledged receipt of his request; she further stated that she would "research and collect documents; I will then set up an appointment for them to be viewed. I should have an appointment set up by the end of this month." Mr. McKinney initiated this appeal by letter dated August 6, 2019. Upon receiving notification of his appeal, Barren County Attorney Kathryn M. Thomas ultimately responded on behalf of BCDC. She advised that Captain Adwell stated as follows: "I gave Mr. McKinney a time frame to research and gather the records for him to review. After researching, [BCDC], and the Barren County Fiscal Court, no longer have on file the prisoner fee and expenses reimbursement policy approved by the Fiscal Court between the dates 11/1/2004 thru 3/17/2006." This office finds that BCDC violated the Open Records Act in failing to either comply with all requirements of KRS 61.880(1), or properly invoke KRS 61.872(5), if appropriate. 1 However, BCDC cannot provide that which it does not have, and therefore did not violate the Act in denying access to a nonexistent record. 2
KRS 61.880(1) dictates the procedure that a public agency like BCDC must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140, p. 4; 06-ORD-147; 10-ORD-201; 11-ORD-035. "[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-153. "[T]he Act 'normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request.'" 01-ORD-140, p. 4 (citing OAG-92-117); 18-ORD-127. "'Only if the parameters of a request are broad," this office reasoned, "and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a 'reasonable time for inspection turn on the particular facts presented.' . . ." 01-ORD-140, p. 4 (citation omitted). 07-ORD-179; 09-ORD-007; 13-ORD-098; 14-ORD-026. KRS 197.025(7) extends the deadline for a response to an open records request submitted to the Department of Corrections ("DOC") from three working days, as provided for in KRS 61.880(1), to five working days. "It has been construed to apply to correctional facilities and jails." 12-ORD-137, p. 2; 16-ORD-054. The initial response by BCDC was timely under both provisions, but was otherwise deficient.
Support for this position is found in KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), which authorizes postponement of access to public records beyond three [or five] working days only "[i]f the public record is in active use, in storage or not otherwise available." Under those circumstances, "the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5); 01-ORD-140; 16-ORD-153. BCDC did not expressly invoke KRS 61.872(5), or provide a detailed explanation of the cause for delay in producing any existing responsive document(s), or provide a specific date when the document(s) would be available. See 12-ORD-151; 13-ORD-035; 18-ORD-188. If the requested policy was "in active use, in storage or not otherwise available," BCDC failed to specify which of these permissible reasons for delay applied or to what extent. See 18-ORD-188. Moreover, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38; 07-ORD-158 (response that agency was "in the process of filling" the request and expected to fill it "within the next two weeks" did not suffice); 08-ORD-006; 18-ORD-188.
Insofar as BCDC failed to fail to satisfy the requirements of KRS 61.872(5), it violated the Act. 16-ORD-153. None of the permissible reasons for delay identified at KRS 61.872(5) appear to apply here, nor was any extension of time justified as to nonexistent records. However, 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 a certain record exists 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); 11-ORD-037; 11-ORD-091. 3
The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). In order to satisfy its burden of justifying a denial per KRS 61.880(2)(c), however, a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. 11-ORD-104, p. 5; 18-ORD-127. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 11-ORD-074. 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.
"The language of [KRS 61.880(1)] 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). A "limited and perfunctory response," the Court recognized, 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 (other citations omitted); 09-ORD-181; 12-ORD-162; 18-ORD-175.
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. It was "therefore incumbent on [BCDC] to ascertain whether records exist[ed] that [were] responsive to [Mr. McKinney'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 BCDC initially failed to affirmatively indicate that no documents responsive to his request for the specified policy existed in the possession of the agency, its original response was deficient. See 09-ORD-145; 16-ORD-104; 17-ORD-204; 18-ORD-175. BCDC was unable to discharge this duty because it failed to conduct a reasonable search to locate any existing responsive document(s) before issuing a response. See 13-ORD-205; 16-ORD-255. Compare 15-ORD-167. However, this office affirms the agency's ultimate disposition of Mr. McKinney's request based upon the nonexistence of the requested policy.
Even if a responsive policy existed in the possession or custody of BCDC, the instant appeal presents no reason to depart from prior Open Records Decisions recognizing that DOC and facilities under its jurisdiction, including local detention centers, 4 are not required to produce records to any inmate unless those records contain a "specific reference" to that individual per KRS 197.025(2), regardless of the individual's purpose in requesting the records. 5 See 09-ORD-006; 09-ORD-202; 10-ORD-198; 15-ORD-088. With the exception of the noted procedural violation, this office finds no error in the agency's denial of Mr. McKinney's request. See 17-ORD-054.
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.
Footnotes
Footnotes
1 Although KRS 197.025(7) modifies the three-day period [of KRS 61.880(1)] to a five-day period, the requirement to provide the detailed explanation is not negated." 17-ORD-262, p. 2 n. 1; 19-ORD-089. See 18-ORD-074; 18-ORD-144; 19-ORD-054.
2 According to Records Series L6922 (Policy and Procedures and Organization File) on the County Jailer Records Retention Schedule, which governs "jail policy, procedures and organization," 501 KAR 3:020(1) provides that "for jails that house state prisoners, jail administration must develop and maintain an organizational chart and a policy and procedures manual that has been adopted by the governing authority and filed with the State Department of Corrections (DOC)." Policies and procedures "must include certain aspects of the jail's operations including, but not limited to: Administration, fiscal management, personnel, security and control, sanitation and management, medical services, food services, emergency and safety procedures, classification prisoner programs, prisoner services, admission and release and training." One copy of the approved policy and procedures and organizational chart must be retained permanently. See 18-ORD-156. The record is unclear as to whether BCDC never developed and maintained such a policy or destroyed the policy from the relevant period and currently has a different policy in effect.
3 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted); 18-ORD-164. Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087. "In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7 (citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). BCDC appears to have ultimately conducted a reasonable search and our decision affirming its denial is premised on this assumption. "Absent proof that [BCDC] failed to use methods which could reasonably be expected to produce the records requested," this office has no basis upon which to question its good faith. 12-ORD-153, p. 4; 18-ORD-164. Compare 15-ORD-210.
4 Given the broad oversight role statutorily assigned to [DOC] relative to jails, and the common interest of these agencies in avoiding disclosure of records that implicate security concerns, and in stemming the swelling tide of frivolous inmate requests," the Attorney General's Office has consistently recognized "that an interpretation of KRS 197.025(2) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole." 03-ORD-074, pp. 3-4.
5 KRS 197.025(2) provides: "KRS 61.870 to 61.884 to the contrary notwithstanding, the [D]epartment shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual. This confidentiality provision is incorporated into the Act per KRS 61.878(1)(l), which authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."