Request By:
Uriah M. Pasha, # 92028
Klayton "Leonard" Burden
Emily Dennis
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Western Kentucky Correctional Complex violated the Open Records Act in the disposition of Uriah M. Pasha's requests to obtain copies of records relating to an incident that occurred on March 7, 2007. Those requests were dated October 24, 2007, 1 November 7, 2007, November 14, 2007, and November 19, 2007. Having reviewed Mr. Pasha's requests, and WKCC's initial response and ultimate disposition of these requests, we find that although WKCC was sometimes dilatory in providing Mr. Pasha with all responsive records, any access issues were mooted by the belated disclosure of those records. Contrary to Mr. Pasha's apparent belief, this office is not statutorily charged, nor is it equipped, to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided . . . ." 2 Moreover, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." 04-ORD-216, p. 3. Accordingly, we decline to comment on these questions.
On November 7, 2007, Mr. Pasha requested a copy of "the incident report written by c/o C. Worley and Lt. R. Parker 3-7-07 concerning Uriah Pasha taking physical action against c/o C. Worley[,] and a copy of Part I of the Disciplinary Report charging with Category 7.1 [sic]." WKCC initially responded by providing Mr. Pasha with a copy of the pertinent "write up." Upon receipt of notification of Mr. Pasha's appeal, WKCC advised:
Officer Worley's incident report is incorporated in the Disciplinary Report Form, Part I - Write Up and Investigation. Lt. Parker is noted in this disciplinary report as a staff person involved, however, the disciplinary report does not note any other incident report filed by Lt. Parker. Furthermore, Lt. Parker's statement of the incident is included in the report of the investigating officer, wherein Sgt. Jenkins notes that he spoke with Lt. Parker and he said the incident took place just how Correctional Officer Worley has written and he (Lt. Parker) seen [sic] the whole incident.
Thus, Mr. Pasha received the record he requested.
On November 14, 2007, Mr. Pasha requested a copy of "Officer Carlton Worley's incident report attached to the E.O.R. written against Uriah Pasha March 7, 2007 (not the disciplinary report)[,] and Lt. Robert Parker's incident report attached to the E.O.R. written against Uriah Pasha March 7, 2007." WKCC initially responded that the requested documents did not exist, explaining that "Part I of the disciplinary report from 3-7-07 contains the written report of Officer Carlton Worley and Lt. Robert Parker's statement." In its supplemental response, WKCC indicated that this response:
is only partially correct in this case. In fact, the March 7, 2007 EOR is, in fact, Lt. Parker's report of the incident. With respect to Mr. Pasha's request for Officer Worley's incident report as attached to the EOR (and not the Disciplinary Report), the undersigned has learned during the course of this appeal that the Kentucky State Penitentiary maintains copies of staff incident reports in its possession, and that a separate incident report by Officer Worley prepared in connection with the EOR does exist at the KSP. Therefore the KSP Information Report prepared by Officer Carlton Worley for the occurrence on March 7, 2007 is hereby disclosed to Mr. Pasha.
Mr. Pasha received, albeit belatedly, the record he requested.
On November 19, 2007, Mr. Pasha requested a copy of "the medical reports written by Nurse Terri Jones attached to the E.O.R. written against Uriah Pasha March 7, 2007 . . . ." WKCC initially denied this request, referring Mr. Pasha to a "letter dated 10-26-07." In its supplemental response, WKCC furnished both this office and Mr. Pasha with a copy of the report, noting that Mr. Pasha had previously provided us with a copy of the same report. Again, Mr. Pasha received, perhaps belatedly, the record he requested.
In the same supplemental response, WKCC acknowledged that irregularities in existing protocol had accounted for the delay in the disclosure of these records, and had resulted in confusion to Mr. Pasha and the WKCC records officer. WKCC agreed to undertake "appropriate steps to ensure that this fact scenario does not reach the level of an open records appeal again."
Clearly, WKCC did not fully discharge its statutory duties under KRS 61.880(1) in its initial responses to Mr. Pasha's request. It is incumbent on WKCC to conduct an adequate search for responsive records before issuing a denial of an open records request, and the requester should not be forced to assert his right of appeal under KRS 61.880(2) to obtain nonexempt public records. We trust that WKCC's commitment to insuring the removal of the obstacles Mr. Pasha encountered in his quest for records relating to the March 7, 2007, incident will permanently eliminate these concerns. Nevertheless, Mr. Pasha received the records identified in his request, although he disputes their authenticity. 3 We concur with WKCC in its view that as to these records access issues, his appeal is moot. We render no decision on these issues. 40 KAR 1:030 Section 6. 4
In correspondence directed to this office following WKCC's submission of its supplemental response, Mr. Pasha expressed skepticism as to the facility's position generally, asserting that "false documents" were submitted to the Attorney General. He noted discrepancies in "fax numbers, dates, and addresses" that, in his view, support his belief that WKCC is engaged in a "cover-up [of] the smear campaign against Uriah Pasha," and expressed the view that only this office "can stop this miscarriage of justice."
As noted above, the Attorney General has consistently refused to attempt to adjudicate disputes concerning discrepancies in the records produced in response to an open records request. 06-ORD-098, p. 3, citing 05-ORD-236. At page 3 of 05-ORD-236, we recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." There a requester questioned the validity of invoices produced in response to a request, and the attorney General advised that the relief sought was unavailable under the Act. See also, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to open records request and Attorney General characterized the question as one that did not arise under the Open Records Act) , 04-OMD-182 (questions regarding authenticity of agency's meeting minutes not appropriate for review by Attorney General); 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in an open records appeal).
Here, as in the cited decisions, we decline Mr. Pasha's request that we assign error or fault to the agency for discrepancies in the records produced for inspection. If evidence of records concealment, records tampering, or records falsification exists, Mr. Pasha may wish to consider his options under KRS 61.991(2)(a) and pertinent criminal statutes. The Attorney General's Office is not, however, the appropriate forum for resolution of these claims.
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.
Footnotes
Footnotes
1 This portion of Mr. Pasha's appeal is time-barred byKRS 197.025(3). That statute provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
Mr. Pasha's request reached WKCC's Records Office on October 26 and a response was issued the same day. Mr. Pasha initiated his appeal on November 21, 2007. Thus, more than twenty days elapsed between the date of WKCC's partial denial of his request and the date on which he initiated his appeal. Accordingly, we will make no finding on this portion of Mr. Pasha's appeal.
2 OAG 89-81, p. 6.
3 See discussion below as to the Attorney General's limited role in adjudicating such a claim.
4 40 KAR 1:030 Section 6 thus provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.