Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
On October 24, 2018, appellant submitted an open records request form seeking inspection of a CPO. 1 Appellant's request described the record as "copy of CPO reflecting postage from me to [Appellant's personal attorney] Larry Simon." On October 26, 2018, KSP Fiscal Manager Vanda Adamson denied the request pursuant to KRS 61.872(2). 2 The denial stated that the request was too broad and overly vague, and a date and amount is necessary to locate the record. On October 28, 2018, Appellant appealed the denial. In his appeal, Appellant provided more information about the CPO, stating that it was given "to my assigned caseworker (Will Simpson) on 10/11/18 in a manila envelope addressed to Larry Simon." Appellant attached a copy of a CPO to his appeal. The CPO requested information to complete the form, including: the inmate's name and institutional number; date; monetary amount; and a verifying signature.
On November 16, 2018, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded to the appeal on behalf of KSP. The response included statements from Ms. Adamson, caseworker Will Simpson, and the KSP mailroom supervisor. Regarding the initial denial, Ms. Adamson explained that Appellant did not provide sufficient information for locating a specific CPO. She stated, "CPO's generally only state that they are for postage or legal mail without the name of the person who will receive the mail. Without a date or amount, I would not be able to tell if the correct CPO had been located."
However, the statements attached to the response indicate that KSP never possessed the CPO. Ms. Adamson stated that she searched Appellant's bank account using the description from his appeal, and "[d]uring the dates of 10/11/18 - 10/26/18 there were no CPO's collected for postage on his account." Mr. Simpson stated that Appellant filled out a CPO, but "[a]s best I remember the CPO was taped to the envelope and turned into the mailroom. " The mailroom supervisor stated that she searched the mailroom but "[n]o one has the CPO in question." Ms. Barker argued the CPO does not exist and "[a] public agency cannot afford a requester access to a record that it does not have or which does not exist."
KSP did not violate the Act when it denied the request based on Appellant's initial description of the CPO. KRS 61.872(2) requires a requester to "describe[e]" the records which he wishes to access by onsite inspection. Kentucky courts have determined that a records request satisfies KRS 61.872(2) if it is "adequate for a reasonable person to ascertain its nature and scope."
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). The record supports KSP's position that the monetary amount and the issue date are the unique information necessary to locate a specific CPO. Appellant's description was not "adequate for a reasonable person to ascertain" the specific CPO requested because it only provided the name of his attorney. A request must be "specific enough so that a public agency can identify and locate the records in question." 13-ORD-077, p. 3 (quoting OAG 89-8). Appellant's initial description of the record was not specific enough to allow KSP to identify and locate the requested CPO.
We also find that the record supports KSP's claim that the CPO does not exist. The evidence in the record demonstrates that the CPO did not come into KSP's possession. There is no reason to doubt that Appellant completed the CPO with his caseworker and taped it to an envelope. However, KSP provided statements showing that the mailroom did not receive the CPO. The record also shows that the KSP fiscal office did not process the CPO, a fact that Appellant acknowledged in his appeal. As such, KSP finds itself in the position of refuting an unsubstantiated claim that it possesses the CPO.
A public agency cannot produce that which it does not have nor is a public agency expected to "prove a negative" in order to refute an unsubstantiated claim that certain records exists.
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005). However, the Kentucky Supreme Court observed "that 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." Id. at 341. In addition, KRS 61.880(2)(c) 3 places the burden of proof in an open records appeal on the public agency. Therefore, KSP has a duty to offer some explanation for the nonexistence of the requested records. See
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" ).
In this case, KSP adequately explained the nonexistence of the CPO through the statements of the mailroom and fiscal office staff. Appellant does not make his prima facie showing that the CPO exists. Though Appellant claims he taped the CPO to an envelope and submitted it to the mailroom, he did not identify a KSP staff member taking possession of the record. The right of inspection attaches only if the record being sought is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. There is no evidence that the CPO is in KSP's possession. Accordingly, KSP met its burden of proof and did not violate the Act.
A party aggrieved by this decision may appeal it 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.
Footnotes
Footnotes
1 CPO" is an abbreviation for "Cash Payment Orders." CPOs are paper receipts that authorize cash paid out of an inmate's account. The orders are a substitute for a currency exchange between the correctional institution and the inmate. CPOs evidence the date, amount, and purpose for the exchanges.
2 KRS 61.872(2) states: "Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency."
3 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."