Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Corrections ("DOC") violated the Kentucky Open Records Act when it responded to an October 2, 2017 open records request from Whitley County Detention Center ("WCDC") inmate Dwight A. Haynes by referring him to the Laurel County Jail. For the reasons stated below, we find that there was no procedural violation.
On October 2, 2017, Mr. Haynes submitted an open records request to the Records Administrator of the WCDC. Mr. Haynes requested that WCDC "either take notice for submission of E.G.T. 1 the certification I obtained while incarcerated in Laurel County Jail effective 2016, better known as N.C.R.C. Gold Certificate, or to obtain the Certification for inspection, so I may submit it to the Central Office for acknowledgement to obtain E.G.T." The WCDC records administrator asked Mr. Haynes to forward his request to the Department of Corrections Central Office in Frankfort ("Central Office").
Mr. Haynes attached the open records request to a cover letter and mailed both to the Central Office. The cover letter noted that it was in regards to "Administrative Appeal via Open Records for E.G.T." with "Attached: Open Records Req." Mr. Haynes states that "[t]his correspondence is in response to the Whitley County Detention Centers, Records Administrator request to forward the Attached Open Records Request, to your office." Mr. Haynes explained that "[i]n 2016, I received a Gold standard Certificate for the Completion of the National Career Readiness Certification (N.C.R.C.), while incarcerated at the Laurel County Correctional Complex...I have made several attempts to obtain said certification for acknowledgement by Central Office -- to no avail." Mr. Haynes concluded the letter stating "will you please assist me in the obtainment and acknowledgment of the N.C.R.C by your Office, so I may be accredited with Educational Good Time it awards?" On October 23, 2017, Mr. Haynes filed an appeal with this office stating that "[t]o date, I have received no responses."
On Monday, October 31, Offender Information Supervisor Brandi Hawkins sent a reply letter to Mr. Haynes. Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, forwarded a copy of the reply letter to our office on the same date. The reply suggests that Mr. Haynes' request for records was misdirected. Ms. Hawkins states that "[t]his letter is in response to your correspondence received in our office on October 25, 2017 2, requesting credit be awarded for your completion of NCRC at Laurel County Jail." Ms. Hawkins states that, "Central Office has not received the NCRC certificate in question." She told Mr. Haynes that he would "need to request this document from the Laurel County Jail, I have provided the address below for easy reference." The reply letter lists a mailing address for the Laurel County Jail.
Mr. Haynes' open records request was more appropriate for the Laurel County Jail, and Ms. Hawkins' reply letter was a proper response to the misdirected open records request. The procedure for responding to a misdirected open records request is found in KRS 61.872(4), which instructs:
"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."
Ms. Hawkins notified Mr. Haynes that DOC did not have possession of his Certificate, and she provided the name and location of the appropriate public agency for his request. The Attorney General 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, pg.6. 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). 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) 3; 02-ORD-120, p. 10. We find that DOC met its duty under the Act.
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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