Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Blackburn Correctional Complex violated the Kentucky Open Records Act in denying Robert G. Autrey's March 24, 2014, request for the following:
1) Post Logbook for 3/2/14 for Dormitory 1, 1st shift to show that Dorm Officer Jason Blair was not notified by Helmburg or Carter about alleged smoking outside D-Bay Door;
2) Staff Log (or) relevant portions of (showing names of Sgts., Lts., Captains working in security building during time period of 3/2/14 at 103:31 PM through 3/3/14 at 109:33 PM[)];
3) List of [a]ll incident Reports which had a 'Supervisors [sic] Review' during the time period of 3/2/14 at 103:30 PM through 3/3/14 at 109:33 PM (to factually demonstrate that no alleged 'staff shortage' caused the delay in Supervisor's Review of this incident);
4) All [r]elevant [v]ideo to Lt. Helmburg[']s testimony of my alleged smoking and [d]estroying physical evidence.
In a timely written response, Offender Records Supervisor Susan Wilhoit-Oliver advised Mr. Autrey that items 1, 2, and 4 of his request were being denied on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), quoting the language of both provisions. BCC also denied item 3 on the basis of KRS 197.025(2), quoting the language of that provision and referencing KRS 61.878(1)(l). To the extent item 4 was "referring to [videotaped] testimony from Lt. Helmberg," BCC advised, "this does not exist." Citing prior decisions of this office, BCC correctly observed that a public agency cannot provide a requester with access to a nonexistent record(s). Based upon the following, this office affirms the denial, as clarified on appeal, in accordance with KRS 197.025(2) and 61.878(1)(l), 1 as well as governing precedents recognizing that a public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of any legal authority mandating their creation or evidence from which their existence can be presumed. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005)
Upon receiving notification of Mr. Autrey's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of BCC, initially confirming that BCC actually received the request on March 27, 2014, and thus its April 1, 2014, response was timely per KRS 197.025(7). Ms. Barker then advised that upon closer scrutiny of the request, "BCC determined that the post log book requested in number 1 of the request does not exist. While the dorm has a log book, counsel has been informed that it is not used for the disciplinary type referenced noted in the request." BCC reiterated that a public agency cannot produce a nonexistent record(s), further noting that a public agency "is not required to 'prove a negative' when explaining that it does not have a record or that it does not exist.'" (Citation omitted.) The Dorm 1 Log Book that does exist, Ms. Barker explained, "while not believed to be responsive to the request, does not contain a specific reference to inmate Autrey on March 2, 2014 (the day being sought)." Accordingly, BCC maintained that said Log Book is exempt per KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as prior decisions of this office confirm, specifically 03-ORD-073 and 04-ORD-076. In addition, disclosure of some information contained in the Log Book would constitute a security threat and is therefore prohibited under KRS 197.025(1), KRS 61.878(1)(l), and prior decisions by the Attorney General.
With regard to item 2 of the request, Ms. Barker clarified that a responsive list does not exist; if Mr. Autrey is "requesting some type of list of staff who would have been on duty, then such a list does not contain a specific reference" to him and would have been withheld in accordance with KRS 197.025(2). Further, disclosure of such a list would also pose a security threat under KRS 197.025(1) "since it would provide too much information concerning staff resources." Similarly, BCC reiterated that no responsive list exists relative to item 3, and even if such a list did exist, it would not contain a specific reference to Mr. Autrey; thus, it would also be protected from disclosure under KRS 197.025(2). Regarding the requested video -- item 4, Ms. Barker advised that upon further review, BCC determined that Mr. Autrey might be requesting "video related to the subject matter of the testimony of Lt. Helmberg rather than video of the testimony" but no responsive video exists in either case.
As BCC correctly argued, this office has consistently recognized that a public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. Bowling, above, at 341 (holding that before a complaining party is entitled to a hearing to refute the agency's claim that records do not exist, he/she is required to make a prima facie showing that such records do exist).; 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable").
Both initially and on appeal BCC denied that any video responsive to item 4 of Mr. Autrey's request exists. The record on appeal is devoid of any facts or evidence to refute that position. Although BCC apparently failed to conduct a reasonable search and confirm the nonexistence of documents responsive to items 1-3 of Mr. Autrey's request initially, 2 upon receipt of his appeal the agency remedied this deficiency. BCC cannot produce nonexistent records for inspection or copying and its denial is affirmed on that basis. The analysis contained in 11-ORD-153, a copy of which is attached hereto and incorporated by reference, is controlling on this question.
Even assuming that BCC possessed any documents responsive to items 1-3 of the request, or to the extent any existing records are potentially responsive, however, BCC has confirmed that none contain any "specific reference" to Mr. Autrey. The Attorney General has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like BCC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See also 00-ORD-040; 03-OR-074; 07-ORD-219; 10-ORD-136; 12-ORD-070. Because the requested logs and/or lists, if any, do not contain a specific reference to Mr. Autrey, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Autrey may believe that application of KRS 197.025(2) imposes under the circumstances, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, BCC also properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 3 99-ORD-161, p. 2.
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:
Robert G. Autrey, # 095754Susan Wilhoit-OliverAmy V. Barker
Footnotes
Footnotes
1 KRS 197.025(2) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, the department 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, unless the request is for a record which contains a specific reference to that individual.
KRS 61.878(1)(l) provides:
KRS 61.878(1)(l) removes from application of the Open Records Act all "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 The agency's initial response failed to comply with KRS 61.880(1) in this respect. "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. With regard to how specific a public agency must be in denying the existence of records being sought, 09-ORD-019 is controlling. The Attorney General has consistently recognized that "it is incumbent on the agency to so state in clear and direct terms" and that "a written response that does not clearly so state is deficient." 02-ORD-144, p. 3 (citation omitted). See 11-ORD-081; 11-ORD-111. Inasmuch as BCC did not state "in clear and direct terms" that no responsive documents existed until Mr. Autrey initiated this appeal, its response was deficient.
3 In light of this determination, this office makes no finding as to whether some or all of the records would also be protected under KRS 197.025(1).