Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in the disposition of Troy Tyson's August 20, 2019, request for: (1) "all Extraordinary Occurrence Reports (EORs) and documents relating to disciplinary report issued against me by Seth Mitchell regarding telephone cal1(s)"; and (2) "outgoing J-Pay message and attachment to [D]wana Robinson from December 2017." By memorandum dated August 29, 2019, KSP Open Records Coordinator Catherine Weicht confirmed receipt of the request, and correctly stated the Department of Corrections ("DOC")(and facilities under its jurisdiction, such as KSP) has five working days in which to issue a written response per KRS 197.025(7). However, she further indicated that additional time may be permitted under the provision "if the records are in use, in storage or not otherwise available." Due to an "overwhelming increase in Open Record requests the last two (2) weeks and the availability of staff to research and assist in obtaining the records requested, additional time is needed in order to provide a reply." 1KSP committed to providing a "final response" on or before September 6, 2019.
On that date, Ms. Weicht supplemented her initial response. She first denied the request as to all EORs as nonexistent and preliminary under KRS 61.878(1)(i) and (j). 2Inasmuch as KSP denied the existence of the requested EOR, the record does not reflect why it referenced either of these statutory exceptions relative to nonexistent preliminary notes or documents. However, with regard to Part II of the Disciplinary Report, she informed Mr. Tyson that it was "in the preliminary stages awaiting the final review and decision from Warden Hart and cannot be provided at this time[,]" 3and again paraphrased the language of KRS 61.878(1)(i) and (j). 4
In his September 9, 2019, appeal, Mr. Tyson challenged the initial failure of KSP to address the request as to investigative notes ( i.e. , all documents relating to Disciplinary Report) audio recordings, etc. He asserted that KSP "withheld the records and gave a very late disposition of his request, obviously to hinder my defense at the disciplinary hearing that was scheduled on September 3, 2019." He further argued that his Disciplinary Report "is a reflection of Internal Affairs [Officer] Seth Mitchell's [opinion] which was incorporated into the final agency action." In his view, there must be "some documents to support this DR. Otherwise it should be deemed frivolous." However, "[t]he Attorney General is not empowered to . . . resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. See 12-ORD-110 (whether agency "followed the required procedures or complied with governing law(s) aside from the Open Records Act is not a question that can be resolved here")(footnotes omitted); 15-ORD-013; 17-ORD-083. Accordingly, this office respectfully declines to consider issues that fall beyond our scope of review under KRS 61.880(2) such as allegations regarding the merits of the Disciplinary Report. See 17-ORD-186.
Upon receiving notification of Mr. Tyson's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP, initially reiterating that no responsive EOR was created, and therefore no responsive document existed. With regard to any investigative notes underlying the Disciplinary Report issued against Mr. Tyson, she also stated that no such records were created or exist. She included a copy of the September 20, 2019, e-mail from Lieutenant Seth Mitchell-Internal Affairs/Security Threat Group Coordinator to verify this assertion. He confirmed that he conducted the investigation of Mr. Tyson, but did not take any notes. Rather, "the investigation consisted of [his review of] 2 phone calls which [led] to a D/R being issued for" Mr. Tyson and fellow inmate Lamar Jackson. KSP referred this office to its prior analysis regarding nonexistent records.
Lastly, counsel clarified that Mr. Tyson's original request asked for "documents." Because a recording of a telephone conversation is not a "document," and he did not specifically mention recordings, KSP did not realize that he was also requesting any responsive audio recordings. However, Ms. Barker indicated that KSP will provide him with a copy upon receipt of a properly executed payment authorization. 5Accordingly, she asserted that Mr. Tyson's appeal is moot relative to any such recordings. Pursuant to 40 KAR 1:030 Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In applying this mandate, the Attorney General has consistently held that when a public agency has denied access to public records, but subsequently grants the requester access, the "propriety of the initial denial becomes moot." 04-ORD-046, p. 5 (citing OAG 91-140). Because KSP has now agreed to provide Mr. Tyson with all existing responsive audio recordings upon receipt of a properly executed payment authorization, this office respectfully declines to render a decision regarding that aspect of the request. 6 See 18-ORD-127. The remaining question is whether KSP violated the Act in denying Mr. Tyson's request as to nonexistent "documents," i.e. , investigative notes or a nonexistent EOR.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. 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-091; 12-ORD-087. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, at KRS 61.8715, 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).
However, in order to satisfy the burden of justifying its denial per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records if appropriate. See
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"); 04-ORD-075; 12-ORD-195. KSP provided a credible written explanation for the nonexistence of certain records being sought and the record on appeal is devoid of any evidence to refute its explanation. Compare 11-ORD-074 (holding that "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" and the agency failed to rebut the presumption).
A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the records being sought exist in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist, following a reasonable search, and explaining why if appropriate. 04-ORD-205, p. 4; 12-ORD-056; 18-ORD-158. When, as in this case, a public agency denies that certain records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 14-ORD-077. KSP did not violate the Open Records Act in denying Mr. Tyson's request for the records being sought as KSP never created those records and it cannot provide that which it does not possess. See 16-ORD-076; 18-ORD-158.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.
Footnotes
Footnotes