Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Green River Correctional Complex violated the Kentucky Open Records Act in denying Uriah M. Pasha's written request for a copy of the "May 7, 2008 Detention Order on Uriah Pasha #92028." Because the Department cannot produce for inspection or copying those records which do not exist or those which it does not possess, this office finds that no violation occurred. Having affirmatively indicated to Mr. Pasha in a timely written response that no such record was located in his file, and ultimately provided a credible explanation for the nonexistence of the record after conducting a reasonable search, GRCC has fulfilled its obligation under the Act; public agencies are not required to "prove a negative" as evidenced by 07-ORD-190.
On June 24, 2008, GRCC Information Specialist Vanessa Dortch responded to Mr. Pasha's request dated June 20, 2008, advising 1 that his "file does not contain a Detention Order dated May 7, 2008." By letter dated June 26, 2008, Mr. Pasha initiated this appeal from the denial of his request, alleging that a detention order was, in fact, issued on the date specified. Upon receiving notification of Mr. Pasha's appeal from this office, Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, responded on behalf of GRCC, in relevant part, as follows:
Ms. Dortch . . . notified Mr. Pasha that his file did not contain a record of a detention order dated May 7, 2008. (Please see attached Affidavit of Vanessa Dortch dated July 24, 2008). Ms. Dortch also contacted Luther Luckett Correctional Complex where Mr. Pasha was housed on May 7, 2008, and was told LLCC did not prepare a detention order on May 7, 2008.
Upon notification of this appeal, I also contacted the Luther Luckett Correctional Complex (LLCC) and reviewed the DOC's electronic database -- Kentucky Offender Management Information System (KOMS) -- to determine whether a detention order was ever issued on May 7, 2008. According to KOMS, Mr. Pasha entered into a behavioral contract with the LLCC on February 12, 2008, which allowed Mr. Pasha to be released from Administrative Segregation on a temporary contractual basis, on the condition that he must maintain good behavior in the general LLCC population. On May 7, 2008, Mr. Pasha violated the terms of his behavioral contract and was returned to Special Management Unit pursuant to the authority of the behavioral contract. As noted by GRCC, a detention order for Uriah Pasha #92028 was never issued on May 7, 2008. A public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-043; 99-ORD-150.
Based upon the foregoing, Ms. Meredith argues that GRCC's denial of Mr. Pasha's request should be affirmed; this office agrees based upon governing authorities.
In a letter of reply dated July 11, 2008, reiterated his contention that GRCC destroyed the Detention Order in question, and asked this office "to prosecute this matter by informing the Attorney General himself of the malfeasance and violation of KRS 524.100." Upon confirming that Mr. Pasha did not forward a copy of his reply to GRCC or Ms. Meredith, the undersigned counsel directed a copy to Ms. Meredith via facsimile on July 30, 2008, for consideration; she responded in a letter of the same date, initially clarifying that "a detention order was never issued on May 7, 2008, because a previous detention order was already in effect." As further explained by Ms. Meredith:
As noted in DOC's response dated July 24, 2008, Inmate Pasha signed a behavioral contract with the DOC on February 12, 2008, which states that Mr. Pasha has served the last 13 years in the administrative segregation unit. Under the original detention order dated September 27, 1995, Inmate Pasha will not complete his segregation time until approximately February 2018. The purpose of the behavioral contract was to provide Mr. Pasha with an opportunity to transition from the LLCC Special Management Unit (SMU) to the general population of inmates on a probationary basis as set forth in the behavioral contract with the understanding that any violation of the February 12, 2008, behavioral contract would result in Mr. Pasha's return to the SMU under the original detention order or a transfer to another institution. On May 7, 2008, an occurrence report was issued for Mr. Pasha which resulted in Mr. Pasha being returned to the SMU under the original detention order from September 27, 1995. Therefore, no detention order was ever issued on May 7, 2008. Mr. Pasha may request a copy of the detention order dated September 27, 1995, by following the open records procedures for inmates set forth in CPP 6.1.
That being said, Ms. Meredith correctly observes that both Mr. Pasha's appeal and his letter of July 11, 2008, "primarily address[] a factual dispute between the parties." However, an appeal filed under the Open Records Act "is not the appropriate venue for an inmate to assert a violation of DOC procedures or any other issues not related" to the Act. Quoting from 08-ORD-142, Ms. Meredith correctly notes that "'[w]e cannot address, in the context of an open records appeal, a complaint that one's due process rights have been violated. The Attorney General 'is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1).'" Id., p. 6 (citation omitted). Accordingly, Mr. Pasha's extraneous arguments cannot be resolved here. Because GRCC affirmatively indicated to Mr. Pasha that no detention order dated May 7, 2008, exists, and ultimately provided an entirely credible explanation for the nonexistence of that record, its denial of Mr. Pasha's request is affirmed; nothing more is required.
In our view, the analysis contained in 07-ORD-190, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. 2 As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. Id., p. 6; 06-ORD-040. To clarify, the right of inspection 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 GRCC has twice asserted here. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought when KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records (or lack of possession, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 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 indicates that any such record exists, and the record supports, rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because GRCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[] requested," as established by the record on appeal, GRCC complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Pasha that no record was located, and ultimately providing a credible explanation as to why no such record was ever created to begin with. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. To hold otherwise would result in the GRCC "essentially hav[ing] to prove a negative" in order to refute Mr. Pasha's claim that such a record exists. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm GRCC's denial of Mr. Pasha's 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.
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 Although Mr. Pasha also requested copies of specified transfer authorization forms, GRCC provided him with copies of those records; therefore, any related issues are moot per 40 KAR 1:030, Section 6.
2 Also attached is a copy of 07-ORD-188 (In re: Kurt Lowe/Environmental and Public Protection Cabinet) upon which this office partially relied in resolving the issues presented by the subsequent appeal (In re: Kurt Lowe/Kentucky Personnel Cabinet).