Request By:
Johnny Phillips, # 231504
Kimberly Campbell, KSR
Catherine Stevens
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Reformatory ("KSR") violated the Open Records Act in its disposition of inmate Johnny Phillips's two open records requests to the facility. For the reasons stated below, we find that KSR did not violate the Act.
April 26, 2017, Request . Inmate Phillips made an open records request to KSR on April 26, 2017, in which he made three separate requests:
1. "The 86 plus pages that I selected on 4-25-17 during inspection with Ms. Campbell." Ms. Kim Campbell, Offender Information Specialist, KSR, timely responded to the request on May 2, 2017, by providing copies of the records that Mr. Phillips selected during his April 25, 2017, inspection of his records. Mr. Phillips did not appeal KSR's response to this request.
2. "Copies of my 2016 open records request made to KSR with all related docs." In response to Item 2, Ms. Campbell denied the request and explained that she had "checked all of [Phillips's] 2016 open records requests and found no open records requests for Kentucky State Reformatory. In accordance with the Attorney General's opinion # 82-234, I am not required to create a document(s) and/or record(s) which do not already exist." Mr. Phillips appealed this response and Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of KSR by letter, May 24, 2017. She explained that the 2016 records request was the subject of an earlier appeal by Mr. Phillips that resulted in a decision by this office, 16-ORD-048. In that 2016 appeal, KSR had denied receiving Mr. Phillips's request and so it is consistent that KSR would, in this appeal, still not have a copy of that request. Ms. Stevens provided a copy of the 2016 request 1 and the responsive records to Mr. Phillips with her letter. Having provided the requested records to Mr. Phillips, we need not belabor this issue and we do not find that KSR violated the Open Records Act in its disposition of this request.
3. "Most recent classification appeal to KY DOC central office on 3/28/17 and decision by them on it (regarding GRCC reclass in March 2017)." 2 Ms. Campbell's initial response of April 26, 2017, denied the request, but explained that she was awaiting a response from the "central office" regarding the records. When Mr. Phillips made another set of requests on May 1, 2017, Ms. Campbell partially denied a request duplicative of this item. Ms. Campbell's response of May 4, to that later request, stated that she had located the original appeal and response to GRCC (Green River Correctional Complex), but that "after speaking with the classification branch, they have not received anything from you regarding an appeal." Ms. Campbell provided Mr. Phillips the records that were otherwise responsive to his request (the records from GRCC regarding his reclassification request), but regarding an appeal to the Classification Branch she stated, "In accordance with Attorney General's opinion # 82-234, I am not required to create a document(s) and/or record(s) which do not already exist."
KSR fulfilled its obligations under the Open Records Act by conducting a search for the records; providing the responsive records it could find regarding the GRCC request and response; determining that no responsive records existed regarding a response from the Classification Branch; and then notifying Mr. Phillips that there were no responsive records to or from the Classification Branch. Because KSR made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," KSR cannot be said to have violated the Act in this regard. 05-ORD-109, p. 3. Although the search may not have yielded all of the records believed to exist by the requester, our analysis turns not on whether the fruits of the agency's search meet the expectations of the requester, but whether the agency made a good faith effort to conduct such a search, and then affirmatively indicated, "as unequivocally as the nonspecificity of the requests permit," that additional records do not exist. 06-ORD-070, p. 10. We find no violation of the Kentucky Open Records Act by KSR in the disposition of Item 3 of Mr. Phillips's April 26 request, or Item 6 of his May 1 request.
May 1, 2017 Request . On May 1, 2017, Mr. Phillips submitted a set of six (6) open records requests, some of which were duplicative of his April 26, 2017, request. Ms. Campbell did not respond to that earlier request until May 2, 2017 3, and so he would not have had her responses when he made these later requests.
1. "Copy of this request and CPO." These records were provided to Mr. Phillips on May 2, 2017, and his appeal does not contest KSR's response to this item of his request.
2. "Current detention order. " These records were provided to Mr. Phillips on May 2, 2017, and his appeal does not contest KSR's response to this item of his request.
3. "Incident report(s); writeup(s); any/all other documents related to current detention; emails, memorandums, etc, and copy of video of incident in chow hall -- or preserve video for outside court/open records appeal." Ms. Campbell responded: "Currently, I see no disciplinary for this detention order [in KOMS]." 4 Ms. Stevens's response states that Ms. Campbell's statement was "100% accurate." In explanation of why Mr. Phillips may have challenged the response to this item, Ms. Stevens submits that it may be the case that the records he seeks are related to a different disciplinary charge that was dismissed, Once such disciplinary charges are dismissed, the records are expunged and Ms. Campbell would not be able to find expunged records in KOMS.
KSR fulfilled its obligations under the Open Records Act by conducting a search for the alleged records upon receiving Mr. Phillips's request; determining that no responsive records existed; determining that there was no requirement for the record to exist; and then notifying him that there were no responsive records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-ORD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). We find no violation of the Kentucky Open Records Act by KSR in the disposition of this item of Mr. Phillips's request.
4. "Please also provide the records I selected recently, with you, during my inspection of my KOMS (paper file). I believe there were 86 pages of docs which I selected and additional ones regarding my recent classification appeal (offender records, classification branch) of my last GRCC reclass in March 2017." This item was duplicative of Item 1 of the April 26, 2017, request, and those records were provided with Ms. Campbell's May 2, 2017, response to that request.
5. "GRCC response." In this item, Mr. Phillips requests a copy of GRCC's response to his reclassification request of March 2017. Ms. Campbell provided that record on May 4, 2017, and Mr. Phillips' appeal does not appear to contest KSR's response.
6. "The appeal and response of central classification final resolution and any/all other docs related to said appeals." 5 This request is duplicative of Item 3, April 26, 2017, appeal, and we addressed this request in response to that earlier request. This request is also duplicative of Item 5, immediately above, as the GRCC response to the reclassification request would necessarily be related to an appeal to the Classification Branch, if such appeal had been made.
Much of Mr. Phillips's appeal letter concerns issues other than the provision of records pursuant to an open records request. The Attorney General's Office has acknowledged that it is not the proper forum for, and cannot decide, issues other than violations of the Open Records Act for appeals initiated under KRS 61.880(2). 14-ORD-083.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Our conclusion, from the record on appeal, is that the copy of the 2016 request was provided by Ms. Stevens, from legal office records, rather than from records Ms. Campbell had available to her.
2 In this instance, "classification" refers to the placement of the inmate at a particular correctional facility.
3 Ms. Campbell's response of May 2, 2017, was timely under KRS 197.025(7), but Mr. Phillips did not wait for that response to before submitting his next set of open records requests. KRS 197.025(7) states: "KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available."
4 KOMS stands for Kentucky Offender Management System and is the electronic filing system for inmate records used by the Kentucky Department of Corrections and its correctional facilities.
5 Mr. Phillips requests documents "related to said appeals." Our understanding of his request is that he appealed the decision of the GRCC Classification Committee to the Deputy Warden, GRCC, and then appealed that decision to the Classification Branch, Department of Corrections.