Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in the disposition of Uriah Pasha's November 28, 2011, request for a "copy of the reports Officer Phoebe Powell made to Lt. Arnold B. Chisholm in the beginning [sic] of the Summer 2011 about inmate Uriah Pasha # 092028 making her feel uneasy" and a "copy of the action taken by Lt. Arnold B. Chisholm against inmate Uriah Pasha # 092028 as a result of the reports Office Phoebe Powell made at the beginning [sic] of the Summer 2011." In his December 14, 2011, appeal, Mr. Pasha referenced the attached "disciplinary report," in support of his position that such records were created; however, the statements upon which Mr. Pasha relied, which are located in the "Report of Investigating Officer" and "Witness Requested" sections, only confirm that Lieutenant Chisholm, the Investigating Officer, spoke with Mr. Pasha regarding the verbal complaints made by Officer Powell and "other female staff members," that Mr. Pasha advised Lt. Chisholm that "he would stay away from Miss Powell and from then on be in uniform in the school," and that said conversation occurred in Summer 2011. 1 Because KSR ultimately explained to Mr. Pasha in writing the reason(s) that no written report or action exists, after conducting a reasonable search, its final disposition of his November 28 request is affirmed.
Citing prior decisions of this office, KSR Offender Information Specialist Marc Abelove initially advised Mr. Pasha that "agencies cannot provide access to records that do not exist (a copy of report by Officer Phoebe Powell make to....see attached) and that agencies discharge their duty under the Open Records Act by stating so." In addition to informing the requester "of the nonexistence of the records," he continued, "the Attorney General's Office has also required that agencies provide an explanation of the nonexistence and made 'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]'" (Citations omitted.) Accordingly, Mr. Abelove offered the following explanation for the nonexistence of such records and the steps taken to determine whether any reports were created:
Senior Captain Jay Whitfield spoke with Officer Phoebe Powell in his office on December 22, 2011. She (Officer Powell) states she did not submit a report to either Lt. Chisholm or CUA-I Glen Dotson in regards to Inmate Pasha (see attached), but she did express her concerns verbally to both Lieutenant Chisholm (now Captain) and CUA-I, Glen Dotson confirmed that Officer Phoebe Powell verbally expressed her concerns in regards to Inmate Pasha but neither of them received a report from Officer Powell.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant Counsel Linda M. Keeton responded on behalf of KSR, reaffirming the accuracy of this explanation and requesting that its disposition of Mr. Pasha's request be affirmed.
More specifically, Ms. Keeton observed that "Officer Powell's 'report' to Lt. Chisholm regarding Mr. Pasha was a verbal statement; a concern that she voiced during a conversation. " Accordingly, Ms. Keeton confirmed, no such report was ever created. With regard to Mr. Pasha's request for "a copy of the action taken . . ." Ms. Keeton further explained that the only action taken by Lt. Chisholm as a result of his conversation with Officer Powell "consisted of Lt. Chisholm talking to Inmate Pasha about the matter in June [2011]. A statement to that effect (underlined and arrowed by Mr. Pasha) is in the disciplinary report submitted by Mr. Pasha as an attachment to his request." 2
Having reiterated the arguments made by Mr. Abelove, KSR then argued that his search was "reasonable because it involved the KSR staff member who would have received the record when created. Mr. Abelove discovered during the search that Officer Powell did not make a written report of her concerns, but instead expressed her concerns verbally to Lt. CUA-I Glen Dotson and Lieutenant Arnold Chisholm (now Captain)." This office agrees that "Mr. Abelove conducted a search that could reasonably be expected to produce the requested record. " However, that search revealed that no such record was ever created, and therefore does not exist. Because the search by KSR did not reveal any records that were responsive, KSR asserted that its denial of Mr. Pasha's request was appropriate. This office agrees. KSR ultimately indicated to Mr. Pasha in a written response that no responsive written "reports" or "action" were created following a "search using methods which [could] reasonably be expected to produce the record[s] requested." 05-ORD-109, p. 3. Accordingly, the Attorney General has no basis upon which to find that KSR violated the Open Records Act in the absence of any irrefutable proof to the contrary. KSR cannot produce that which it does not have nor is KSR required to "prove a negative" under existing law. 3
As in 11-ORD-118 and 11-ORD-214 (issued July 27, 2011, and December 16, 2011, respectively), this office declines to unnecessarily lengthen the instant decision with yet another summary of the relevant legal authorities given that Mr. Pasha "is no doubt familiar with the line of open records decisions issued by the Attorney General recognizing that, in general, public agencies that deny access to requested records based on the nonexistence of the records cannot be held to have violated the Open Records Act. " Id., pp. 1-2. See, e.g., 11-ORD-091 and authorities cited therein; 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"). See 11-ORD-037 (affirming the denial by KSR of a request by Mr. Pasha "in light of its explanation for the nonexistence of the records sought and the absence of any facts or law importing the records' existence"). The analysis contained in 11-ORD-122 (In re: Uriah M. Pasha/Kentucky State Reformatory, issued August 8, 2011), a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented.
In a series of decisions issued since Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), this office has affirmed 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; 11-ORD-209. As in 11-ORD-209, Mr. Pasha "has not attempted to make such a showing here, nor could he given that no responsive document was ever created." Id., p. 5. In the absence of the requisite prima facie showing, or any evidence to suggest that KSR ever created the records at issue, this office affirms the agency's denial of his request per Bowling , above, and prior decisions, including 11-ORD-209, and those referenced above.
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 M. Pasha, 092028Marc AbeloveLinda M. Keeton
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