Request By:
Uriah Marquis Pasha, # 92028
Michael T. Alexander
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Governor violated the Kentucky Open Records Act in denying Uriah M. Pasha's written request for a "copy of the letters dated July 15, 2008, July 16, 2008, and July 19, 2008 to Governor[] Steven L. Beshear, Office of the Governor 700 Capit[a]l Ave., Frankfort, Ky. 40601, from Uriah Pasha # 92028 GRCC P.O. Box 9300, Central City, Ky. 42330 and the response[s] thereto." Challenging the agency's failure to issue a timely written response, Mr. Pasha initiated this appeal by letter dated August 12, 2008; however, Mr. Pasha's request is dated August 5, 2008, only five business days before, which does not allow time for delivery of any response, even assuming that his request was, in fact, received. Although this office is unable to resolve the factual issue regarding delivery and receipt of Mr. Pasha's request, and therefore makes no finding in this regard, the agency's ultimate disposition of the request is affirmed. 1
Upon receiving notification of Mr. Pasha's appeal from this office, Michael T. Alexander issued a written response to Mr. Pasha on behalf of the Office of the Governor, a copy of which he delivered to this office on August 21, 2008. Enclosed with Mr. Alexander's response is a copy of a letter that Mr. Pasha "sent to Governor Beshear dated July 15, 2008. There is no response to this letter." According to Mr. Alexander, this office was "unable to locate the additional letters" being sought; accordingly, "there are no additional documents in the Office of the Governor responsive" to Mr. Pasha's request.
As long recognized by this office, a public agency is not required to honor a request for nonexistent records or those which the public agency does not possess. 04-ORD-036, p. 5. With regard to statutory obligations of a public agency when denying access due to nonexistence (or lack of possession) of the records, the analysis contained in 07-ORD-190 is controlling; a copy of that decision is attached hereto and incorporated by reference (along with a copy of 07-ORD-188 upon which the former decision was premised). Assuming the Office of the Governor made "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" the agency cannot be said to have violated the Act in failing to produce such records. 07-ORD-023, p. 8 (citation omitted). 2 See 05-ORD-108. Having affirmatively indicated to Mr. Pasha in writing that no additional records exist aside from the letter ultimately provided, the Office of the Governor discharged its duty. To hold otherwise would result in the Office of the Governor "essentially hav[ing] to prove a negative" in order to refute any claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the 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-190 and 07-ORD-188.
Footnotes
Footnotes
1 With regard to Mr. Pasha's various allegations concerning the Department of Corrections, which apparently prompted his letter(s) to the Office of the Governor, and his related suggestion that the DOC "may wish to revise their system to redress grievance[s]," Mr. Pasha is reminded that the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.
2 Although the Office of the Governor does not identify the steps taken to locate any of the responsive letters, and this office is therefore precluded from assessing the adequacy of the search, the record on appeal is devoid of any reason to question whether a good faith effort was made.