Opinion
Opinion By: Daniel Cameron, Attorney General; Matthew Ray, Assistant Attorney General
Open Records Decision
Inmate Chris Hawkins ("Appellant") submitted two requests for records to the Penitentiary. First, the Appellant requested a copy of "rejection sheets only" for four specific grievances. 1Second, the Appellant provided and quoted from an email between two employees that refers to "four remaining" disciplinary reports about the Appellant from which a mental health statement needed to be removed "like . . . the other" disciplinary reports. 2The Appellant requested copies of the "other" disciplinary reports to which the email referred, or any other disciplinary report where similar statements made about the Appellant were "removed after" the Appellant's disciplinary proceedings. The Penitentiary granted the first request and provided four pages of responsive records. However, it denied the second request because the Penitentiary claimed that it could not find any responsive records that specifically mentioned the Appellant. This appeal followed.
The Appellant claimed that one of the rejection sheets that the Penitentiary provided was not one that the Appellant requested, and that the Penitentiary should refund the ten-cent copying fee it charged for that record. On appeal, the Penitentiary admits that it mistakenly provided the wrong rejection sheet, but that it has now provided the Appellant with the correct one. Accordingly, since the Penitentiary has made the requested record available to the Appellant, this issue is now moot. See 40 KAR 1:030 § 6 ("If the 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.").
For the Appellant's second request, the Penitentiary continues to assert on appeal that it could not locate responsive records. Once a public agency states affirmatively that it does not possess responsive records, the burden shifts to the requester to present a prima facie case that requested records do exist in the possession of the public agency. See
Bowling v. Lexington-Fayette Urb. Cnty. Gov. , 172 S.W.3d 333, 341 (Ky. 2005). If the requester is able to make a prima facie case that the records do or should exist, then the public agency "may also be called upon to prove that its search was adequate."
City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling , 172 S.W.3d at 341).
To make a prima facie case, the Appellant provides an email in which one employee asks the other to remove information about the Appellant from "four remaining" disciplinary reports "like [the Penitentiary] did for the other" disciplinary reports. The Appellant then requested to inspect disciplinary reports from which statements about the Appellant's mental health were removed "after" the Appellant's disciplinary hearing. In its original response, the Penitentiary stated:
The only [disciplinary report] in [the Appellant's] inmate electronic file that reflect where a mental health statement was ever removed from one of [the Appellant's disciplinary reports] after it was seen by the Adj. Committee/appealed KSP-2021-0001789, KSP-2021-000714 & KSP 2021-0001579 reflect statements then Sgt. Anderson placed in the investigation sections of them from LPA Megan Wilke. However, these statements were not removed from these [disciplinary reports]. (Emphasis added).
The Penitentiary restates this quote verbatim on appeal. But from this statement, the Penitentiary appears to have located at least a few of the Appellant's disciplinary reports from which the objectionable statement was removed. Thus, the Penitentiary's response, and the email the Appellant provided, constituted a prima facie case that at least a few responsive records exist.
Because the Appellant made a prima facie case that potentially responsive records existed, this Office asked the Penitentiary to provide additional information to explain the adequacy of its search. Specifically, this Office asked the Penitentiary to explain why its initial response indicated that at least a few responsive records existed. The Penitentiary admitted that its initial response was somewhat "inartful," but that upon further review the only disciplinary reports from which the objectionable language had been removed were altered before the Appellant's disciplinary hearings. Because the Appellant sought the disciplinary reports from which the objectionable language was removed after the disciplinary hearing, these three disciplinary reports were not responsive to the Appellant's request. The Penitentiary explains that it has searched for responsive records three times now--initially upon receiving the request, again upon receiving notice of the Appellant's appeal, and a third time in response to this Office's additional questioning. The Penitentiary is adamant that the objectionable language was not removed from any of the Appellant's disciplinary reports after a disciplinary hearing occurred.
At bottom, this Office is not a "finder of documents." 94-ORD-121. Once a prima facie case has been made that responsive records may exist, this Office's inquiry is limited to whether the agency has adequately searched for responsive documents. See
Univ. of Ky. v. Hatemi , 636 S.W.3d 857, 868 n.8 (Ky. App. 2021) (collecting prior Office decisions in which the Office recognized its inability to make a factual finding that records exist). The Penitentiary has explained the adequacy of its search, and therefore, the Office cannot find that it violated the Act when it denied the Appellant's request for records that do not exist.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from the date of this decision. Under 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. The Attorney General will accept notice of the complaint emailed to OAGAppeals@ky.gov.
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