Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Department of Corrections violated the Kentucky Open Records Act in the disposition of Junior Grant's March 15, 2011, request for a copy of his "parole violation warrant" and a copy of his "parole revocation hearing." 1 By letter dated March 24, 2011, Branch Manager Jonathan G. Hall, DOC Offender Information Services, advised Mr. Grant "there is no public record maintained by the [DOC] responsive to your request. A public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-043; 99-ORD-150." In response to Mr. Grant's appeal, DOC Assistant General Counsel Amy V. Barker supplemented the agency's response, explaining that Mr. Grant's "parole was revoked when he received a new sentence and returned to custody. Neither of the requested records is created in such a case." Although DOC initially failed to satisfy its burden of proof under KRS 61.880(2)(c) by explaining the reason for the nonexistence of the documents requested, Ms. Barker ultimately did so by letter dated April 1, 2011. Because DOC is not required to produce nonexistent records for inspection or copying, and has now provided a credible explanation of why such records were never created, this office affirms the agency's disposition of Mr. Grant's request.
Ms. Barker advised that Mr. Grant's parole "was automatically revoked pursuant to KRS 439.352 when he received a new sentence and returned to custody on the new sentence. " She further explained:
A parole violation warrant is not needed to return a parolee to custody if the parolee is already returned to custody on the new sentence. No hearing is held if the parolee is not returned to custody on a parole violation warrant. In the case of a new crime being committed while on parole, the offender may be returned to custody by his incarceration for the new crime. Neither of the requested records is required to be created in such a case. Parole is automatically revoked by operation of KRS 439.532 when the offender returns to custody on the new judgment.
In closing, Ms. Barker acknowledged on behalf of DOC "that the letter sent in response should have explained the reason why the record did not exist." However, she continued, "[t]he record does not exist, so it cannot be provided." Ms. Barker also noted that even if the record existed, Mr. Grant "would not have been able to inspect a record in the central office of the [DOC 2]. A review of KRS 439.352 validates the position of DOC; 3 accordingly, this office has no basis upon which to conclude that it violated the Act.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being 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's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," 4 with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such record(s) exists just as DOC has repeatedly asserted here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 10-ORD-050. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 5 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). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University). When, as in this case, a public agency denies that any responsive documents exist, and the record on appeal supports its position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. This office is "not 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.
In responding to Ms. Grant's appeal, DOC affirmatively indicated that no documents existed which matched the description provided; DOC later explained that such documentation is never created, and it has now provided an entirely credible explanation of why. See Boulder v. Parke, 791 S.W.2d 376, 377 (Ky. App. 1990)(holding that appellant's due process rights were not violated when his parole was automatically revoked per KRS 439.352 upon his conviction for a crime he committed while on parole as he was not entitled to a revocation hearing because his "loss of liberty derive[d] not from a parole violation warrant, but from his subsequent conviction"). DOC now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Pasha's claim that additional records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "that 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." 6 In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Mr. Grant has not attempted to make such a showing here nor would that be possible inasmuch as the records were never created.
In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. DOC complied with the Act, regardless of whether it was able to produce the documents requested, in affirmatively indicating that no such records exist, and ultimately providing a credible explanation as to why no such records would have been created to begin with. 05-ORD-109, p. 3; 02-ORD-144. To hold otherwise would result in DOC "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7.
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.
Distributed to:
Junior Grant, # 073100Jonathan G. HallAmy V. Barker
Footnotes
Footnotes
1 This office reminds Mr. Grant that DOC is permitted five business days in which to issue a written response upon receipt of a request per KRS 197.025(7); accordingly, its response to Mr. Grant's March 15, 2011, request, which DOC received on March 18, 2011, was not due until March 25, 2011.
2 Consideration of this argument is unnecessary in light of the determination that DOC cannot produce nonexistent records and has adequately explained the reason such records were not created.
3 KRS 439.352 provides:
Recommitment of a parolee to prison on a new sentence received for commission of a crime while on parole shall automatically terminate his parole status on any sentence on which he has not received a final discharge, or a restoration of civil rights, prior to the date of recommitment. The prisoner shall, at the time of the recommitment on the new sentence, begin to accrue additional time credit toward conditional release or expiration of sentence on the sentence on which he had previously been paroled unless he has been finally discharged from parole on the sentence or has been restored to civil rights prior to the date of recommitment.
4 Because DOC has acknowledged this error on appeal, this office will not belabor the issue with further discussion of the well-established law regarding application of KRS 61.880(1).
5 See KRS 61.8715.
6 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."