19-ORD-234
December 27, 2019
In re: Leonel Martinez/Western Kentucky Correctional Complex
Summary: Western Kentucky Correctional Complex (“WKCC”)
cannot produce nonexistent records, namely, specified medical
records, nor does WKCC have to “prove a negative” to refute an
unsubstantiated claim that such records exist. Disputes relating to
discrepancies between the records provided and those sought are
not justiciable in this forum. WKCC discharged its duty under the
Open Records Act (“the Act”) in conducting a reasonable search for
the records in dispute, providing the requester with all existing
responsive documents, and explaining the lack of additional
documents.
Open Records Decision
The question presented in this appeal is whether WKCC violated the Act
in denying Leonel Martinez’s (“Appellant”) November 14, 2019, request for “a
copy from the following prisons[’] bottom bunk assignment, LSCC [Little Sandy
Correctional Complex] 2019/GRCC [Green River Correctional Complex]
2019/WKCC 2019/Northpoint Training Center 2009, includ[ing], notes[,]
prescriptions, orders.” In a timely written response per KRS 197.025(7), Medical
Records Custodian Rebecca Smith notified Appellant that she had mailed five
pages of responsive documents via institutional mail to him. On appeal, the
Appellant alleged that WKCC violated the Act by failing to conduct an adequate
search for the records that he requested. He further alleged that WKCC
improperly charged him for 23 blank pages and made various other claims thatfall beyond the purview of this Office under KRS 61.880(2)(a). Based upon the
following, this Office finds that WKCC did not violate the Act.
Upon receiving notification of Appellant’s appeal from this Office, the
Justice and Public Safety Cabinet reiterated that the WKCC Records Custodian
attached the five pages of responsive documents to her November 18, 2019,
written response following a “thorough search” of Appellant’s medical records.1
Accordingly, WKCC maintained there is no basis for this appeal. Citing prior
decisions by this Office, WKCC argued that insofar as the Appellant alleged that
additional responsive documents existed in the possession or control of WKCC, a
public agency cannot produce that which it does not have in order to refute an
unsubstantiated claim that additional records exist. In the absence of any facts or
evidence that a public agency created additional records or that additional
records currently exist, a public agency discharges its duty under the Act in
affirmatively stating it does not possess the requested records in a timely written
response. WKCC also maintained that any remaining issues Appellant raised
could not be resolved in this forum.
The right to inspect and receive copies of public records only attaches if
the records sought are “prepared, owned, used, in the possession of or retained
by a public agency.” KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 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 an unsubstantiated claim that
certain records exist. Bowling v. Lexington-Fayette Urban Cty. Gov’t, 172 S.W.3d
333, 341 (Ky. 2005). To obtain relief, the requester must first establish a prima
facie case that the requested records exist. Id. Under the circumstances
presented, this Office’s 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
1 In further support of its position, WKCC included a copy of an internal e-mail from the records
custodian sent on December 3, 2019. The records custodian refuted Appellant’s position that he
requested any records “on bottom bunk” dated March 8, 2010. Appellant did not request records
for the bottom bunk dated March 8, 2010. Rather, Appellant’s request was for “bottom bunk
assignments . . . WKCC, 2019 . . .” The records custodian reiterated that she “completed a
thorough review of patients [sic] chart” and that she “provided all information corresponding to
his request. I have not denied any records to this patient.” She provided records from the 2018
and 2019 dates that Appellant requested “with printout of log.” Once a “special need order is
written by the provider,” she advised, “the previous [order] is no longer available to print. I
provided previous dates with log.”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.
A public agency violates KRS 61.880(1) “if it fails to advise the requesting
party whether the” records exist, but discharges its duty under the Act in
advising that records being sought do not exist following a reasonable search,
and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 14-
ORD-204. Moreover, when some of the documents requested have been
disclosed, this Office has generally declined to “adjudicate a dispute regarding a
disparity, if any, between records for which inspection has already been
permitted, and those sought but not provided.” OAG 89-81, p. 4; 12-ORD-087;
14-ORD-204; 17-ORD-276. “[O]bjections to alleged inaccuracies and omissions in
the records disclosed” cannot be resolved in the context of an open records
appeal. 10-ORD-178, p. 2; 12-ORD-162; 18-ORD-207. As in this case, when a
public agency denies that additional responsive documents exist, submits proof
it conducted a reasonable search, and the record on appeal contains no contrary
evidence, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 11-ORD-037
(denial of request for nonexistent records upheld in the “absence of any facts or
law importing the records’ existence”).
Further, “questions relating to the verifiability, authenticity, or validity of
records disclosed under the Act are not generally capable of resolution under the
Act.” 04-ORD-216, p. 3; 18-ORD-207. The record is devoid of any evidence to
refute WKCC’s position that no additional responsive documents exist,
notwithstanding any discrepancies that Appellant perceives between the records
provided and those he believes may or should exist. See 18-ORD-207. In the
absence of the requisite prima facie showing, or any irrefutable facts or evidence
to support Appellant’s claim, this office must affirm WKCC’s denial of his
request. 12-ORD-030 (affirming denial of request for nonexistent records where
appellant did not offer any “irrefutable proof that such [records] were created or
still exist”). Appellant’s broader issues are not justiciable in this forum as the
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; 14-ORD-
023.
Either party may appeal this decision by initiating action in the
appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS61.880(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.
Daniel Cameron
Attorney General
Michelle D. Harrison
Assistant Attorney General
#462
Distributed to:
Leonel Martinez, #216925
Rebecca Smith
Julie C. Foster