Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in not providing documents that did not exist. We find that LSCC did not violate the Open Records Act in not providing documents that did not exist.
Brandon R. Bruin ("Bruin") submitted an open records request to LSCC on Feb. 17, 2014. Bruin requested "all occurrence reports in reference to my administrative detainment on January 31, 2014 in regards to asking to speak with i.a. about harassment, then the allegation of making threatening statement towards staff *specifically i.a. Holbrooks report." LSCC responded on Feb. 24, 2014 that "an occurrence report does not exist in regards to you requesting to speak to IA. The only thing that exists in reference to you speaking with IA is a detention order." Bruin initiated this appeal on Mar. 3, 2014, citing "CPP 15.6IIC(2)(f), any immediate action taken, including use of force, or unusual inmate behavior." Bruin claimed that "upon asking to speak with internal affairs in reference to being harassed, i was immediately detain. There should be several occurrence reports to this matter. Please investigate as for I need these documents to file criminal charges against the relevant parties employed at this institution." LSCC responded on Mar. 13, 2014 that "the institution met its obligation by explaining that the occurrence report sought did not exist. Inmate Bruin offers nothing to indicate that the response exists and has failed to make a prima facie showing that the record exists." LSCC further argued that "a review of the policy on the DOC website indicates that the section cited in the policy simply states what a disciplinary report must include and has no bearing on when an occurrence report should be made."
"A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. "In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess."09-ORD-214.
In order to overcome an agency's denial that records exist, Bruin "must make a prima facie showing that such records do exist,"
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). Bruin cites to Kentucky Corrections Policies and Procedures ("CPP") 15.6(II)(C)(2), which provides that "the disciplinary report shall include . . . (f) any immediate action taken, including use of force, or unusual inmate behavior." CPP 15.6(II)(C)(2)(f) does not require production of a disciplinary report in every instance of immediate action taken or unusual inmate behavior; it merely requires that such action or behavior be included in any disciplinary reports that are made. Accordingly, we find that Bruin has not established a prima facie case that any occurrence reports exist, and that LSCC did not violate the Open Records Act in informing Bruin that the requested occurrence reports did not exist.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Brandon R. Bruin # 240651Beth HarperAmy V. Barker