09-ord-194 November 9, 2009 In re: Hershell Sheets/Department of Corrections Summary

09-ORD-194
November 9, 2009

In re: Hershell Sheets/Department of Corrections

Summary: In the absence of a prima facie showing that responsive documents exist in the possession of the Department of Corrections aside from those already provided, its disposition of the request is affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005); a public agency is not required to “prove a negative.” This office cannot resolve a dispute regarding a disparity between the records being sought and those provided.
Open Records Decision
At issue in this appeal is whether the Department of Corrections violated the Kentucky Open Records Act in the disposition of Hershell Sheets’ request for copies of specified investigative records, including “personnel actions, investigation reports, witness statements, reprimands, etc.” relating to employee Paul Holbrook. Inasmuch as the DOC apparently conducted a thorough search for potentially responsive documents and ultimately provided Mr. Sheets with copies of all existing records in the possession of the agency, this office has no basis upon which to find a substantive violation. A public agency cannot produce nonexistent records or those which it does not possess, nor must a public agency “prove a negative” under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005); likewise, this office is not empowered to resolve a dispute concerning a disparity between the records being sought and those provided.
By letter directed to Stephanie Appel, Assistant Director of Personnel, on September 10, 2009, Mr. Sheets requested the following:
1) All copies of the investigation records including [sic] but not limited to personnel actions, investigation reports, witness statements, reprimands, etc. in the case file of the sexual harassment complaint filed by employee Eva Stevens in August 2008 against employee Paul Holbrook at the Little Sandy Correctional Complex;
2) All copies of investigations on employee Paul Holbrook during his employment with this Cabinet at any and all locations he has worked. Copies of all of the records of investigations and complaints made by other employees within your agency on employee Paul Holbrook during his employment with your agency including [sic] but not limited to personnel actions, investigation reports, witness statements, reprimands, etc. including, but not limited to the two (2) sexual harassment complaints filed by employees at the Eastern Kentucky Correctional Complex against employee Paul Holbrook.
As the certified mail receipt confirms, a copy of which is attached to Mr. Sheets’ appeal, someone named Melissa Moore at the DOC signed to acknowledge receipt of his request on September 14, 2009. Following an exchange via e-mail with Mr. Sheets on September 22, 2009, Ms. Appel responded to Mr. Sheets’ request by letter dated September 23, 2009, advising that her written response “was delayed by inadvertent error” in her absence¹ but the documents requested were “being prepared” and would “be mailed no later than September 28, 2009.”²
By letter dated September 29, 2009, Ms. Appel advised Mr. Sheets that documents responsive to his request were enclosed; however, the DOC withheld certain personnel records on the basis of KRS 61.878(1)(a).³ Ms. Appel further advised that a “thorough examination” of the DOC “personnel records” was made with regard to his request concerning two sexual harassment complaints allegedly filed against Paul Holbrook; however, Ms. Appel’s office “did not located [sic] any record of this nature.” In a subsequent e-mail, Mr. Sheets questioned whether the DOC had actually produced all of the responsive documents in the possession of the agency. Ms. Appel indicated that the DOC had “fully complied” with his request of September 10, 2009, and that she had personally “contacted all areas in which [sic] would have the records” being sought. According to Ms. Appel, the records that were provided “were the only records in which were located [sic] that met the requirement” for his request. In closing, Ms. Appel further advised that she had expanded her search by contacting EKCC but no records were found that matched the description(s) provided.
By letter dated October 9, 2009, Mr. Sheets initiated this appeal. He disagreed that all records in the possession of the DOC were provided “as there are other known incidents and specific investigations on this employee” that he is “aware of that nothing was provided on as requested.” Specifically, Mr. Sheets referred to the “investigation of Mr. Holbrook at [EKCC] that resulted in his transfer to [LSCC]” and the “investigation of Mr. Holbrook regarding a complaint filed by Beth Harper regarding ties to Representative Rocky Adkins at [LSCC].” Mr. Sheets did not provide any objective proof that additional documentation existed.
Upon receiving notification of Mr. Sheets’ appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of the DOC. In relevant part, Ms. Barker explained:
Mr. Sheets sent his request for records to Stephanie Appel. Ms. Appel is the Assistant Director of Personnel with the [DOC] and her office is located in Frankfort, at one of the buildings containing the central offices of the Department. She reviewed the record of her office and made inquiries of other staff who may have some of the requested records within the central offices. An initial response was sent to Mr. Sheets dated September 23, 2009. Ms. Appel did not initially receive the request for records mailed to her by Mr. Sheets because of a delivery error while she was out of the office. The nonexempt records that were located were provided to Mr. Sheets in the letter of response dated September 29, 2009. Ms. Appeal acknowledges that the supplemental response was sent to Mr. Sheets a day later than the initial response indicated and her office is reviewing ways to better manage the dates of open records requests. Ms. Appel did not have custody of any records pertaining to the two investigations mentioned in the letter of appeal. She made reasonable inquiries within the central offices of the [DOC] to locate investigation records. She provided all of the nonexempt documents to Mr. Sheets that she had received at the time of her response.
Ms. Appeal made inquiries with staff at [EKCC] and [LSCC] to determine if the institutions had additional records pertaining to the request. Ms. Appel was only required to provide the names of the custodians and addresses of the two institutions if they had any of the records in question.[⁴] She went beyond what was required since she was not the custodian of the records outside of her office and made inquiries to attempt to obtain the records and provide them to Mr. Sheets. Mr. Sheets can certainly extend his request to Warden Joseph Meko, [LSCC-address omitted] and Warden John Motley, [EKCC-address omitted], but Ms. Appel received no information to indicate that the requested investigation records exist. Ms. Appel does not have custody of additional records for the two investigations described in the appeal and cannot provide documents of which she does not have custody.
Ms. Appel made further inquiries with EKCC and LSCC after the letter of appeal was received and no documents pertaining to the two stated investigations could be located.[⁵] An inquiry was made to Beth Harper and Ms. Appel was informed that Ms. Harper had not made a complaint. Ms. Appel cannot provide copies of records that she does not have and has been informed that they do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150.
In closing, Ms. Barker advised that Ms. Appel “did receive two additional documents pertaining to Eva Stevens mentioned in the original request letter after the appeal to the Attorney General was filed.” Citing 40 KAR 1:030, Section 6, Ms. Barker correctly asserted that the “matter is moot as to the documents.” However, the DOC cannot produce nonexistent records for inspection or copying, nor is the DOC required to “prove a negative” in order to refute Mr. Sheets’ claim that additional records exist; accordingly, this office affirms the agency’s ultimate disposition of his request.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, 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); 02-ORD-120, p. 10; 04-ORD-205. A public agency’s response violates KRS 61.880(1), “if it fails to advise the requesting party whether the requested record exists,” with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the DOC has repeatedly asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. Under the circumstances presented, our duty is not “to conduct an investigation in order to locate records whose existence or custody is in dispute.” 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records,⁶ the Act only regulates access to records that are “prepared, owned, used, in the possession of or retained by a public agency.” KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky’s Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate’s injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University’s custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff’s custody because sheriff did not conduct the investigation). When, as in this case, a public agency denies that any responsive documents exist within its custody or control beyond those provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. This office is “not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability.” 08-ORD-206, p. 1.

In responding to Mr. Sheets’ appeal, the DOC affirmatively indicated that no responsive documents aside from those already provided to Mr. Sheets and explained the steps taken to ensure that none were inadvertently withheld. The DOC now finds itself in the position of having to “prove a negative” in order to conclusively refute Mr. Sheets’ claim that additional records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed:

The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency’s denial of the record’s existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing “that free and open examination of records is in the public interest,” when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency’s denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record’s existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party’s claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
For these reasons, the Court determined “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.”⁷ In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. The instant appeal presents no reason to depart from this approach.
In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Because no prima facie showing has been made, this office must affirm the agency’s disposition of the request in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the DOC “essentially hav[ing] to prove a negative” in order to refute a claim that additional records exist. 07-ORD-190, p. 7.
Because the DOC made “a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,” as the record on appeal establishes, the DOC 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, our analysis turns not on whether the fruits of the search meet the expectations of the requester, but whether the agency made a good faith effort to conduct such an adequate search, and then affirmatively indicated that additional records did not exist. 06-ORD-070, p. 10. As the Attorney General has long recognized, this office cannot “adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office” under the Act. OAG 89-81, p. 3. In other words, to the extent Mr. Sheets has questioned the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, “questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act.” 04-ORD-216, p. 3; 09-ORD-101; 06-ORD-042; 04-ORD-032; 02-ORD-89.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Jack Conway

Attorney General

Michelle D. Harrison

Assistant Attorney General

#374
Distributed to:
Hershell Sheets

Stephanie R. Appel

Amy V. Barker

1 Suffice it to say that it “is incumbent on [the DOC], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests.” 01-ORD-140, p. 6; 05-ORD-064.

2 Noticeably absent from the agency’s initial response were any reference to KRS 61.872(5), the only exception to KRS 61.880(1), and the “detailed explanation” of the cause for the delay in providing access required under KRS 61.872(5). On this issue, the analysis contained in 05-ORD-064 (pp.3-6) is controlling; a copy of that decision is attached hereto and incorporated by reference.

3 More specifically, the DOC withheld “annual employee evaluations, educational transcripts, payroll and medical records, and documents related thereto” and redacted certain information from the records provided, including social security numbers, home addresses, home telephone numbers, etc. Although most of the records and information withheld are generally protected under the analysis relative to KRS 61.878(1)(a) (see 03-ORD-012 and 09-ORD-027), such a determination is fact specific; however, additional consideration of this issue is unwarranted given that Mr. Sheets did not actually request Mr. Holbrook’s personnel file. See 06-ORD-006 and 09-ORD-161 for applications of KRS 61.878(1)(a).

In failing to explain how the cited exception applied to the information and records being withheld, the DOC violated KRS 61.880(1) and failed to satisfy its burden of proof.

4 In doing so, the DOC belatedly complied with KRS 61.872(4).

5 Whether the methods employed constitute an adequate search turns on the following standard:

[T]he Open Records Act does not require an agency to conduct “an exhaustive exhumation of records,” Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition “when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight.” In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on the agency “to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested.” Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency’s “good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search.” Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we “need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.” Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).

95-ORD-96, p. 7 (emphasis added). A review of the record confirms that the DOC conducted a search that could reasonably be expected to produce additional records if any such records existed.

6 See KRS 61.8715.

7 Black’s Law Dictionary, 1071 (5^th ed. 1979), defines prima facie as “a fact presumed to be true unless disproved by some evidence to the contrary.”