Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary violated the Open Records Act in the disposition of Charles A. Robinson's requests for a copy of the transfer referral submitted by the mental health staff that resulted in his transfer from Kentucky State Penitentiary to Kentucky State Reformatory on September 16, 2003. Mr. Robinson's belief that such a document exists is apparently based upon a statement that appears in the "Comments" section of the applicable Department of Corrections Transfer Authorization form, a copy of which was attached to his letter of appeal, indicating that "[t]his transfer is based on the request of mental health staff. " Kentucky State Penitentiary's Medical Records Custodian Sally Tyler denied Mr. Robinson's September 8, 2004, request on September 13, 2004, advising him that his "record ha[d] been researched and there is nothing pertaining to a mental health referral to KSR." 1 For the reasons that follow, we find that because Kentucky State Penitentiary cannot produce for inspection a record that does not exist, the Penitentiary cannot be said to have violated the Act in the disposition of Mr. Robinson's request[s]. 2 However, given the statement that appears in his Transfer Authorization Form, we believe Mr. Robinson is entitled to a plausible explanation for the nonexistence of the requested record.
In 97-ORD-116, the Attorney General observed:
[A] public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 11.501 to 11.517 , 45.253, 171.420, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records.
97-ORD-116, p. 1, 2. Thus, in 94-ORD-140, we affirmed the Ohio County Sheriff's Department's denial of a request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation. See also, 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by University's regulations); 98-ORD-23 (certification documents for agency compliance with records management policies do not exist because Department for Libraries and Archives has no formal certification program due to limited fiscal and staff resources.) Conversely, in 97-ORD-103, 97-ORD-116, and 97-ORD-146, we held that because the public agencies failed to offer even a minimal explanation for the nonexistence of records which were apparently required by law, we could not determine if the agencies fully discharged their statutory duties under the Open Records Act.
Although there is no indication in the record on appeal that a written transfer referral is required by law, we believe that in light of the statement that appears on his Corrections Transfer Authorization Form, Mr. Robinson is entitled to some explanation for the nonexistence of that record. For example, if the mental health staff's referral was not reduced to writing, and/or is not required by Corrections' policies to be reduced to writing, Mr. Robinson should be so advised. Absent such an explanation, this appeal is more closely akin to 97-ORD-103, 97-ORD-116, and 97-ORD-146.
On these facts, we cannot conclusively determine that Kentucky State Penitentiary fully discharged its duties under the Open Records Act. Although, as noted, it cannot produce a record that does not exist, and cannot be said to violate the Act in failing to do so, we encourage the Penitentiary to supplement its denial with a written explanation for the nonexistence of the requested record.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Charles A. Robinson, # 126756Kentucky State PenitentiaryP.O. Box 5128Eddyville, KY 42038
Emily DennisJustice & Public Safety CabinetDepartment of CorrectionsOffice of General Counsel2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Nancy B. DoomDeputy Warden for ProgramsKentucky State PenitentiaryP.O. Box 5128Eddyville, KY 42038
Footnotes
Footnotes
1 Mr. Robinson also complains that his September 3, 2004, letter to Warden Glenn Heaberlin, seeking the Warden's assistance in his efforts to obtain the transfer referral, went unanswered. That letter mirrored an earlier letter directed to Deputy Warden Nancy Doom to which she responded on September 3, advising Mr. Robinson that the Medical Records Department had not received an open records request from him, and suggesting that he submit his request to that Department. Given Deputy Warden Doom's clear instructions to Mr. Robinson, we agree that no further response from Warden Heaberlin was necessary and therefore find no violation of the Open Records Act.
2 Additionally, Mr. Robinson requests that this office investigate to determine if he was transferred to Kentucky State Reformatory as a retaliatory act by officials of Kentucky State Penitentiary. Given this office's limited role in adjudicating open records disputes, we concur with the Penitentiary in the view that this is not an open record issue over which the Attorney General has jurisdiction. KRS 61.880(2).