Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Correctional Institute for Women ("KCIW") violated the Open Records Act in denying KeShawn Johnson's June 4, 2018, request for a copy of the adjustment hearing tape dated February 28, 2017. KCIW received the request on June 5, 2018, and issued a timely written response per KRS 197.025(7) on June 12, 2018. KCIW denied the request, as "there is no record on file." In her June 20, 2018, letter of appeal, Ms. Johnson quoted Corrections Policies and Procedures ("CPP") 15.6, II.B.2. in support of her position that recordings of adjustment hearings must be maintained for a period of two (2) years. 1
Upon receiving notification of Ms. Johnson's appeal from this office, Attorney Julie C. Foster, Justice and Public Safety Cabinet, responded on behalf of KCIW. Ms. Foster stated that KCIW staff made additional efforts to locate the requested audio recording, "but no records could be located." She attached the June 29, 2018, e-mail from Offender Information Specialist Christopher Fowler, that was directed to her on July 2, 2018, and which confirmed that KCIW staff "conducted an exhaustive search of the adjustments system and are unable to locate any recordings of the adjustment hearing for Inmate Johnson on 2/28/2017." Mr. Fowler indicated the Adjustment Officer that presided over Ms. Johnson's hearing is currently unavailable. KCIW does "not believe it would be accurate to say there was a mechanical malfunction. Internal Affairs took extensive measures to search the database . . . but was unsuccessful in locating the recordings. " In her July 2, 2018, appeal response, Ms. Foster asserted that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess, nor is a public agency required to "prove a negative" in order to refute a claim that a certain record exists in the possession or custody of the agency.
This office subsequently asked Ms. Foster to clarify whether KCIW was unable to locate the subject recording because it never created any such recording or because it subsequently lost said recording. Ms. Foster promptly replied on behalf of KCIW. Because the recording of Ms. Johnson's hearing is the only recording from that day that KCIW cannot locate, KCIW believes the recording has been lost.
The statutorily guaranteed right of inspection attaches only if the record in dispute is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such record exists, or advising that it lacks possession and explaining why, as KCIW ultimately did here. 13-ORD-052, p. 3. It is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 2 01-ORD-136, p. 2; 11-ORD-104. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171. Under KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870--61.880, and the State Archives and Records Act, KRS 171.410--171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8; 11-ORD-104. In sum, "the key to records access is effective records management." Id. , p. 10; 11-ORD-051. Accordingly, there is a higher standard of review applied when denials are based upon the nonexistence of the records being sought. In order to satisfy its burden of justifying a denial under KRS 61.880(2)(c), "a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate." 11-ORD-104, p. 5. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence" ). "Loss or destruction of a public record creates a rebuttable presumption of records mismanagement." 11-ORD-104, p. 5; 13-ORD-024. KCIW has not rebutted this presumption here.
Under KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and Kentucky Department for Libraries and Archives (KDLA) with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530. Of particular significance, the Commission exercised this authority in creating the Department of Corrections Records Retention Schedule , Records Series No. 05522 of which, entitled Prison Disciplinary Hearing File - Recording, governs the retention and disposition of recordings that are of "Prison Disciplinary Hearings conducted pursuant to 501 KAR 6:020 Corrections Policy & Procedure (CPP) 15.6." The Retention and Disposition instructions for such recordings are to "Retain in agency for two (2) years after case closure; destroy." Accordingly, a recording that KCIW created on February 28, 2017, should have still existed as of June 4, 2018, the date of Ms. Johnson's request.
KCIW cannot produce that which it does not have, nor is KCIW required to "prove a negative" in order to refute a claim that a recording of Ms. Johnson's adjustment hearing was not only created on February 28, 2017, but also still exists, under Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-341 (Ky. 2005)("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") and prior decisions of this office applying the rule announced in that case. See 11-ORD-091. However, the fact remains that KCIW apparently created the recording and subsequently lost it. Accordingly, this office is obliged to refer the matter to KDLA in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted. See 11-ORD-104; 13-ORD-205. Compare 11-ORD-014; 13-ORD-055.
Although the Attorney General does not find, as a matter of law, that KCIW violated the Open Records Act by failing to provide Ms. Johnson with a copy of the subject recording, this office does find that KCIW subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records, "thereby frustrating the public's right of access." 10-ORD-130, p. 5; 13-ORD-205. Ultimately, this office cannot afford Ms. Johnson the relief that she seeks; the Attorney General is not empowered to declare the inability of KCIW to produce a nonexistent record(s) a violation of the Open Records Act or to compel KCIW to maintain a certain type of record(s) for a specific period of time. See 16-ORD-263. Inasmuch as the latter prerogative resides with KDLA and the Archives and Records Commission, the Attorney General respectfully defers to those entities regarding the issues raised.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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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