Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the response of Corrections Corporation of America to three separate but related requests submitted by Joseph L. Silverburg on September 15, 2004, violated the Kentucky Open Records Act. With respect to those records which CCA does not possess, CCA discharged its statutory duty by affirmatively indicating as much to Mr. Silverburg in writing within five days as required by KRS 197.025(7). Because the remaining records do not contain a specific reference to Mr. Silverburg, CCA properly denied his request as to those records on the basis of KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). 1
On a standard request form directed to CCA "via Lee Adjustment Center-Chief of Security Ponds," Mr. Silverburg, an inmate at LAC, requested to be provided with "the names of 'ALL' CCA private prison guards from [the] state of Tennessee, and 'ANY' other state that was a party of the Emergency Response Team [,]" and a copy of "any executive order of Gov. Ernie Fletcher giving 'out-of-state' private prison guard[s]/citizen[s] authority in Kentucky." In a separate request of the same date directed to the same recipients, Mr. Silverburg also requested a copy of CCA's "federal license to cross state line Tennessee [sic] to Kentucky with firearm [s] pursuant to Title 22 U.S.C. §§ 922 thru 929," and any "executive order from [the] Governor of Kentucky authorizing private citizens of Tenn[essee] & other states to use deadly force on Kentucky prisoners." In his third request directed to "[CCA] via [LAC]," Mr. Silverburg requested a copy of the "'contract agreement' between CCA, Beattyville, Kentucky (Lee county) and [the] Kentucky Department of Corrections." By letter dated September 29, 2004, Mr. Silverburg initiated this appeal from LAC's "refusal" of his request "to inspect" the specified records and be provided with the names of the prison guards.
Upon receiving notification of Mr. Silverburg's appeal from this office on October 13, 2004, Sherril Gautreaux, Assistant General Counsel, Operations, responded on behalf of CCA and LAC in a letter of the same date received by this office on October 18, 2004. With regard to the alleged executive orders and CCA's "federal license" to cross state lines with firearms, CCA "has no documents in its possession that are responsive to his request." 2 Citing KRS 197.025(2), 3 CCA denies Mr. Silverburg's request to be provided with the names of CCA employees that were members of the emergency response team at LAC. As correctly observed by CCA, the records "referencing members of the SORT team clearly fall within the purview [of] KRS 197.025(2)" insofar as these records do not contain a specific reference to Mr. Silverburg. "Prior decisions of the Attorney General support the denial of the requested records. 03-ORD-091, 03-ORD-071." Likewise, the contract between the Commonwealth of Kentucky, Beattyville, Kentucky, and the DOC "clearly falls within the purview of KRS 197.025(2)" as these records do not contain a specific reference to Mr. Silverburg. In CCA's view, 03-ORD-074, affirming a denial by the Fayette County Detention Center of an inmate's request to inspect various contracts maintained by the FCDC on the basis of KRS 197.025(2), is determinative as to the accessibility of the contract requested. 4 Because the instant appeal presents no reason to depart from this authority, we agree.
In closing, CCA correctly observes this "office has consistently recognized that a public agency cannot afford a requestor access to records that it does not have or which do not exist[,]" citing 93-ORD-134 as authority. "In addition, there can be no violation of the Kentucky Open Records Act by an agency that has not received a request for public records. " KRS 61.872(2). Pursuant to KRS 197.025(7), 5 "the Department of Corrections has five (5) days in which to determine whether the records shall be released." Since Mr. Silverburg's request "was never received by LAC Records Management Office, and some of the records requested by Mr. Silverburg do not exist, there is no basis upon which to conclude that LAC violated the Kentucky Open Records Act in this case." Further, two categories of records are exempt from disclosure under KRS 197.025 . In all respects, the position of CCA is supported by governing precedent.
On appeal, CCA indicates that no records in its possession are responsive to Mr. Silverburg's request for copies of "any executive order" fitting the description provided or CCA's "federal license" to cross state lines with firearms. CCA obviously cannot produce that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only if the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 2. As correctly argued by CCA, this office has consistently recognized that "a public agency cannot provide access to records that it does not have or which do not exist." 03-ORD-205, p. 3, citing 99-ORD-98, p. 6; 02-ORD-145; 01-ORD-36; 97-ORD-17; 93-ORD-134. See also OAG 91-203; OAG 91-112; OAG 87-54; OAG 83-111.
In addressing the obligations of an agency denying access to public records on this basis, the Attorney General has often observed:
[A]n agency's inability to produce records due to their 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 [citations omitted]. While it is obvious that an agency cannot furnish that which is does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3. In other words, an agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as CCA ultimately did here in reference to the aforementioned records. 6 It is not "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, the role of the Attorney General in adjudicating an open records dispute is defined by KRS 61.880(2), 7 and this office is without authority to deviate from that statute. Although there are occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715 , further inquiry is not warranted on the facts presented. To the contrary, it is entirely plausible that CCA does not possess records which are responsive to Mr. Silverburg's request even assuming that such records exist. Because CCA "cannot furnish that which it does not have" and has now discharged its statutory duty by affirmatively indicating as much to Mr. Silverburg, CCA did not violate the Open Records Act in this regard. In light of this determination, the remaining question is whether CCA properly denied Mr. Silverburg's request as to the remaining records on the basis of KRS 197.025(2).
By its express terms, KRS 197.025(2) applies to requests for records submitted by inmates "confined in a jail or any facility . . . under the jurisdiction of the [DOC]." However, this office has long recognized that private providers such as CCA are subject to the provisions of the Open Records Act based on the mandatory language of KRS 197.510(7). See 02-ORD-223; 96-ORD-235; 96-ORD-184; 94-ORD-27. KRS 197.510(7) provides:
The private provider shall develop and implement a plan for the dissemination of information about the adult correctional facility to the public, government agencies, and the media. The plan shall be made available to all persons. All documents and records, except financial records, maintained by the private provider shall be deemed public records as defined by KRS 61.870 and be subject to the provisions of KRS 61.872 to 61.884.
In construing this provision, the Attorney General has observed:
The aim of privatization, as we understand it, is to implement private sector management efficiency and principles of competitive business in the traditionally public penal sector. The state does not, of course, entirely forfeit its responsibility for operating correctional facilities. It retains the power to supervise and monitor the management and operation of the facilities. See, e.g. KRS 197.505(1); KRS 197.510(4); KRS 197.510(5); KRS 197.510(7); KRS 197.510(9); KRS 197.510(10); KRS 197.510(29); KRS 197.515; KRS 197.525.
Moreover, the private provider is publicly accountable. The records of the private provider are, in general, treated as public records within the meaning of KRS 61.870(2). KRS 197.510(7). That statute stops short, however, of mandating wholesale disclosure of private provider records. It expressly exempts financial records maintained by the private provider, presumably out of a recognition that the provider is a private entity which might be competitively disadvantaged by the release of the records.
94-ORD-27, p. 5; 02-ORD-223.
In denying Mr. Silverburg's request, CCA relies upon KRS 197.025(2), which is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). That being the case, KRS 197.025(2) necessarily applies to CCA. In 03-ORD-074, this office concluded 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 as a whole." Id., p. 4. Our holding today is a logical extension of this reasoning. "Although the statute does not specifically provide that [private providers such as CCA and facilities under its jurisdiction] are not required to comply with such requests," to hold otherwise would yield the absurd result that inmates housed at private correctional facilities under the jurisdiction of CCA or other private providers would be able to access records which inmates housed at state facilities under the jurisdiction of the DOC are unable to access. In construing legislative enactments, this office presumes "that the legislature did not intend an absurd result. " Commonwealth of Kentucky, Central State Hospital v. Gray, 880 S.W.2d 557, 559 (1994).
In our view, the reasoning contained in 03-ORD-074, a copy of which is attached hereto and incorporated by reference, is equally applicable here. "Given the broad oversight role statutorily assigned to [CCA] relative to [facilities such as LAC], 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," an interpretation of KRS 197.025(2) which does not include private providers such as CCA would defy both logic and precedent. Because neither the requested "contract agreement" nor the records identifying those CCA employees which were members of the emergency response team contain a specific reference to Mr. Silverburg, CCA properly relied upon KRS 197.025(2) in denying his request as to those records.
A party aggrieved by this decision may appeal it by initiating an 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.
Joseph L. Silverburg, # 151608Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Barbara EstesLee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Sherril GautreauxCCA10 Burton Hill Blvd.Nashville, TN 37215
Footnotes
Footnotes
1 Among the records excluded from the application ofKRS 61.870 to 61.884 by KRS 61.878(1) are:
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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2 As explained by CCA:
CCA did not receive timely notice of these requests from this inmate in order to respond within his deadline in that the requests were not sent to the Records Management office but were directed to other staff members who were not aware of the procedures for responding. The Records Management Office did receive the requests on or around 10/8/04 and is in the process of responding to Mr. Silverburg stating that CCA does not have documents in its possession that are responsive to his request.
3 KRS 197.025(2) provides:
KRS 61.872 to the contrary notwithstanding, the department [CCA] 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 [CCA], unless the request is for a record which contains a specific reference to that individual.
(Emphasis added).
4 According to Ms. Gautreaux, the "Records Management office did not receive timely notice of these requests prior to Mr. Silverburg's appeal."
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5 KRS 197.025(7) provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
As evidenced by the record, any delay in processing the requests submitted by Mr. Silverburg is apparently at least partially attributable to his misdirection of those requests. With respect to disputes of this nature between a requester and a public agency, the Attorney General has long recognized:
This office cannot, with the information currently available, adjudicate a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. . . . Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3. Likewise, the record on appeal does not contain sufficient information concerning the actual receipt and delivery of Mr. Silverburg's requests to enable this office to conclusively resolve this discrepancy. Because CCA responded in a proper and timely fashion upon actual receipt of Mr. Silverburg's requests, further analysis of this procedural issue is unwarranted.
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6 Pursuant toKRS 61.872(4):
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
It is unclear from the record whether CCA is asserting that no records fitting the description provided exist or merely that no records in its possession are responsive to Mr. Silverburg's request. If any such records exist, CCA must provide Mr. Silverburg with the name and address of the custodial agency if known.
7 KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
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