Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Summary : The Louisville Metro Department of Corrections appropriately denied the inmate's request per KRS 197.025(2) because he requested records that did not contain a specific reference to him, though it committed a procedural violation by failing to cite the specific exemption in its response. LMDC did not violate the Open Records Act in denying Appellant's request for records that do not exist.
Open Records Decision
The issue presented in this appeal is whether Louisville Metro Department of Corrections ("LMDC") violated the Open Records Act when it refused to provide a copy of the "LMDC gym schedule" and "the inmate Library Services schedule" upon request of inmate Bobby Brock. For the reasons stated below, this office finds that LMDC properly refused to provide the requested records pursuant to KRS 197.025(2), though it committed a procedural violation by failing to cite the specific exemption in its response. Further, LMDC did not violate the Open Records Act in denying Appellant's request for records that do not exist.
On June 11, 2019, Appellant requested that LMDC provide him with a copy of the "LMDC gym schedule" and "the inmate Library Services schedule." By undated letter, LMDC denied his request, stating:
Concerning the gym schedule [sic] you will need to direct this to security staff [sic] specifically a sergeant.
. . .
[at] this time we don't have a library service. Please consult [with] security or books have been placed on a mobile cart that can be passed out by the floor work aids on each of the floors.
Appellant initiated this appeal by letter dated June 18, 2019, which this office received on June 24, 2019.
On June 28, 2019, the Jefferson County Attorney's office responded to the appeal, citing KRS 197.025(2) for its denial of the gym schedule because the requested record contained no reference to Appellant. As to the library schedule, it responded by citing 07-ORD-190 and stated that the requested record does not exist because there are no library services at LMDC.
As to Appellant's first request for the gym schedule, LMDC appropriately denied his request, but committed a procedural violation in its initial response. KRS 61.880(1) requires an agency denial to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." The failure to cite KRS 61.878(1)(h) in the original denial was therefore a procedural violation. See 14-ORD-223. However, LMDC properly withheld the records under KRS 197.025(2), and LMDC cured the procedural violation by citing the appropriate statute in its response to this appeal. KRS 197.025(2) provides, in part, that inmate facilities "shall not be required to comply with a request for any record from an inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of [DOC], unless the request is for a record which contains a specific reference to that individual." KRS 197.025(2) is incorporated into the Open Records Act by KRS 61.878(1). In its response to this appeal, LMDC confirmed that the requested gym schedule does not specifically reference Appellant. Because LMDC is not required to provide Appellant with copies of records that do not contain inmate-specific information pursuant to KRS 197.025(2), LMDC did not substantively violate the Open Records Act in denying Appellant's request.
As to Appellant's request for the library schedule, LMDC complied with the Act when it denied Appellant's request because such a record does not exist. LMDC cannot produce nonexistent records for inspection or copying. See
Bowling v. Lexington Fayette Urban Cty. Gov't , 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. This office has long recognized that a public agency cannot grant a requester access to nonexistent records. 07-ORD-190, p .6; 06-ORD-040; 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150; 09-ORD-088; 04-ORD-043. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records. See
Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. Here, LMDC affirmatively stated that the requested records do not exist in its response to Appellant's open records request and explained the requested schedule does not exist because no such service is offered by LMDC. LMDC affirmed this statement on appeal. Accordingly, LMDC complied with the requirements of the Open Records Act as to Appellant's request for a library services schedule.
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.