Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Uriah Pasha's October 27, 2011, request for a "copy of the authorized transfer orders to transfer Uriah Pasha[,] # 092028[,] from KRS to EKCC 10/25/2011, and from LLCC to KSR 7/15/2010; and a copy of the results of Uriah Pasha['s] . . . disciplinary contract revotion [sic]; a copy of the document that dates [sic] what date Uriah Pasha['s] disciplinary segregation time was placed on the shelf at KSR between 7/15/2010 thur [sic] 10/26/2011; [and] a copy of the document used to recalculate Uriah Pasha['s] . . . segregation time October 2011." Upon receiving notification of Mr. Pasha's November 7, 2011, appeal, 1 Assistant Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC, advising that Mr. Pasha submitted a nearly identical request on November 3 and was provided with all existing responsive documents. 2 The last document requested, concerning recalculation of segregation time in October 2011, Ms. Barker explained, "does not exist since his segregation time was not recalculated." EKCC further advised that Mr. Pasha's time was not reduced "based on the terms of his CPTU Disciplinary Segregation/ Behavioral Contract," a copy of which it also recently supplied to him. EKCC subsequently explained the nonexistence of the record in greater detail, thereby satisfying its burden of proof under KRS 61.880(2)(c). Because EKCC is not required to honor a duplicative request, unless Mr. Pasha "can explain the necessity of reproducing the same records" 3 which have already been provided, as Ms. Barker correctly argued, nor is EKCC able to produce a nonexistent record for inspection or copying, this office affirms the final disposition of his request given the absence of any facts or law importing the existence of the single document remaining in dispute.
In response to a request for clarification regarding Mr. Pasha's request for "a copy of the results of [his] disciplinary segregation revotion [sic]," the only document not addressed in the agency's response to his nearly identical October 27 request, Ms. Barker supplemented the agency's response as follows:
DOC Central Staff and counsel believed that Inmate Pasha was seeking a copy of the document that would explain why he did not receive a reduction in this segregation time as discussed in his CPTU Disciplinary Segregation/ Behavioral Contract at KSR. The only document that Central Office staff was aware of that dealt with the issue was the CPTU Disciplinary Segregation/ Behavioral Contract itself. As explained in related Log # 201100413, the contract set the terms of how the segregation time would be reduced. When the terms of the contract were not met, the segregation time was not reduced. No separate revocation document would have been created where there was nothing to revoke. Further, no document was needed since the contract clearly stated that if its terms were met, then the segregation time would be reduced by a specific formula. Since the terms of the contract were not met, no reduction in time ever occurred and no reduction needed to be revoked.
A copy of the CPTU Disciplinary Segregation/ Behavioral Contract was provided by EKCC before Central Office staff received and responded to the request at issue. If Inmate Pasha was not seeking this contract in response to his request, then Central Office does not have a copy of a separate document that indicates segregation time was revoked. Normally Central Office would refer Inmate Pasha to staff at KSR and EKCC for any record that may exist, but counsel has learned in work[ing] on the response to Log # 201100413 that no revocation document was created, so Central Office supplements its response to state that no segregation time revocation document exists.
Because "a public agency cannot afford a requester access to a record that it does not have or which does not exist," and for the reasons originally stated, EKCC asked the Attorney General to affirm its disposition of Mr. Pasha's request.
As EKCC correctly observed in response to Mr. Pasha's appeal, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. 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. Thus, 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 in affirmatively indicating that no such records exist as EKCC has asserted in this case. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 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. 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, 4 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 currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the record(s) in dispute at a minimum. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 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). When, as in this case, a public agency denies that any such record(s) exists, and the record supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling, above, at 341. Addressing this dilemma, in Bowling the Court observed "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." 5 Id. 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 records in the absence of a prima facie showing that records 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. Mr. Pasha has not attempted to make such a showing here, nor could he given that no responsive document was ever created.
Because Mr. Pasha "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. See 11-ORD-037 (denial of Mr. Pasha's request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); see also 11-ORD-118. Compare 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"); 11-ORD-036. EKCC cannot produce that which it does not have nor is EKCC required to "prove a negative." To hold otherwise would contravene existing legal authority. In the absence of the requisite prima facie showing, or any evidence to confirm that EKCC ever created a document reflecting the "results of [his] disciplinary segregation contract rev[oca]tion," this office affirms the agency's denial of his request in accordance with Bowling , above, and prior decisions of this office such as 11-ORD-014, 11-ORD-037, 11-ORD-122, and 11-ORD-091. See also 07-ORD-188; 07-ORD-190; 08-ORD-015; 11-ORD-058.
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.
Distributed to:
Uriah Pasha, # 092028Amy V. Barker
Footnotes
Footnotes
1 Mr. Pasha contended that "five working days have passed without an answer," implicitly alleging that EKCC violated KRS 197.025(7); however, the agency disputed receiving the request in response to his appeal. The Attorney General cannot resolve factual disputes concerning the actual delivery and receipt of a request; however, absent objective proof to the contrary, this office does not have any reason to question the veracity of EKCC or Ms. Barker, and therefore finds no violation in this regard. In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statutory mandate. See OAG 89-81; 03-ORD-061; 08-ORD-172.
2 Attached to Ms. Barker's response was a copy of the agency's November 18, 2011, response to Mr. Pasha's October 27, 2011, request, which it received on November 14, 2011, and his November 3 request for a "copy from KOMS showing what date and who authorized Uriah Pasha # 092028 segregation time to be shelf [sic] and what date and who authorized it to be revoked; and a copy of the authorized transfer form to have Uriah Pasha # 092028 transfer[red] to EKCC 10/25/2011, and to KSR 7/15/2010." The disposition is dated November 10, after this appeal was filed, and indicates that his request was "granted."
3 This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198, a copy of which is attached hereto and incorporated by reference. Mr. Pasha has not offered any justification; accordingly, our analysis focuses exclusively on the single document not addressed in the agency's response to Mr. Pasha's November 3 request.
4 See KRS 61.8715.
5 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."