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 January 23, 2012, request for a "copy of the KSR Academic School Building Non-Legal Aide/ Inmate Legal Representative Registry Book entry for Uriah Pasha # 092028 assisting Inmate Brian Hedges in 2011; and, CUA-Glen Dotson [sic] Memorandum to DW-Troy Pollock 10/20/2011 re: Uriah Pasha # 092028." Because KSR provided Mr. Pasha with a copy of the requested memorandum, and the related issues are thus moot per 40 KAR 1:030, Section 6, our analysis focuses exclusively on whether KSR properly denied his request for the specified Registry Book, i.e. , Legal Assistance Log. In a timely written response, Offender Information Specialist Marc Abelove advised Mr. Pasha that "Ms. Laura Simpson, CUA-Education Center Coordinator and Officer Phoebe Powell (assigned to the KSR Education Center on the 8-4 shift) reviewed the 'Legal Assistance Log' for 2011 and did not locate an entry for Uriah Pasha assisting Inmate Brian Hedges." The Legal Assistance Log, Mr. Abelove further explained, "is used when an inmate request[s] someone who is not an employed [sic] as a legal aide/ or legal aide at all to assist with their legal work. Both the inmate and the person requested to assist must submit a form with both signatures indicating this." (Original emphasis.) The Log, according to Mr. Abelove, "is kept in the services side of the academic school." Mr. Abelove also correctly noted that a public agency cannot produce a nonexistent record.
Relying upon a statement by Officer Phoebe Powell in the "Addendum to Information Report" attached to his appeal (received by the Adjustment Committee on October 13, 2011), 1 which purportedly established that she knew he was "registered to assist [Mr. Hedges] with the cell phone disciplinary report and subsequent petition for Declaration of Rights" and therefore "had reason to do research in Westlaw per Policy CPP 14.4," Mr. Pasha subsequently initiated this appeal. Mr. Pasha emphatically asserted that he created the requested entry, raising a variety of issues which, in short, are beyond our scope of review, such as the allegation that Officer Powell "destroyed physical evidence in violation of KRS 524.100 -- Tampering with Physical Evidence. " Having advised Mr. Pasha in a timely written response that no responsive Log entry/form was located following a "search using methods which [could] reasonably be expected to produce the record[s] requested," KSR discharged its duty. KSR cannot produce that which it does not have nor is KSR required to "prove a negative" under existing law. See 11-ORD-122; 12-ORD-025.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, supplemented the agency's response. Correctly noting that Mr. Pasha takes issue with legally irrelevant matters regarding "the shifts that he believes that staff at KSR work," etc. Ms. Barker explained that Correctional Unit Administrator Laura Simpson reviewed the Legal Assistant Log and "located four records pertaining to Inmate Pasha[,]" none of which referenced Brian Hedges. Attached to Ms. Barker's February 20, 2012, letter was the affidavit of Ms. Simpson and a sample Legal Assistance Log Registration Form. KSR also noted that Ms. Simpson "did not destroy a log form involving Inmate Pasha and has no knowledge of the log form requested being created." Referencing the enclosed affidavit by Officer Powell, KSR also clarified that she "did not destroy any such record involving Inmate Pasha." Even assuming for the sake of argument that Mr. Pasha "did create the log form he seeks," Ms. Barker concluded, "it is not maintained at KSR."
Ms. Barker clarified that the Log Form in dispute "does not fit the description of any of the logs within the Department of Corrections records retention schedule." However, the General Government Records Retention Schedule does contain a Records Series for information and reference material (M0018) which includes some logs. Ms. Barker correctly observed that the Legal Assistance Log seems to fall into that Series for purposes of determining the applicable retention period. "It is an informational log, " she continued, "to allow staff at KSR to know which inmates (who are not assigned legal aides) are assisting other inmates with legal matters. The information is no longer needed after the inmate leaves the institution." Mr. Pasha was transferred from KSR "some months ago on October 25, 2011," Ms. Barker observed. Accordingly, KSR "was not required to maintain the record after it was no longer needed, if it was ever created as indicated by Inmate Pasha." It suffices to say that a review of Records Series M0018 does include "some logs, " and the Disposition Instructions provide that such records must be "Destroy [ed] when no longer needed. " 2 In the absence of any irrefutable proof that Mr. Pasha not only created a responsive Log "entry" or form, but that such a record(s) currently exists in the possession of KSR, this office has no basis upon which to conclude that KSR violated the Open Records Act. Having advised Mr. Pasha in a timely written response that no responsive Log Form/entry still exists, assuming it was ever created, following a reasonable search, and ultimately explained why, KSR discharged its duty.
As in 11-ORD-118, 11-ORD-214, and 12-ORD-025 (issued July 27, 2011, December 16, 2011, and January 30, 2012, 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. See also 12-ORD-019; 12-ORD-025.
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. In the absence of the requisite prima facie showing, or any evidence to confirm that such a Log Form/entry was created, or still exists in the possession of KSR, this office affirms the agency's denial of Mr. Pasha's request per Bowling , above, and prior decisions, including 11-ORD-122, 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 Pasha, # 092028Marc AbeloveAmy V. Barker
Footnotes
Footnotes
1 Specifically, Officer Powell notes that I/M Pasha also recently remarked 'They got some more of your cell phones on the yard[]...have you seen [L]ucky lately?" According to Mr. Pasha, Mr. Hedges "is also named Lucky and he was found guilty by the Oldham County District Court of promoting contraband (i.e. cell phone) ."
2 This office confirmed with a representative of the Kentucky Department for Libraries and Archives that Records Series M0018 on the General Schedule is the only existing Series which is applicable. KDLA is consulting with DOC to determine whether a separate Records Series governing such logs or forms should be added to the DOC Schedule .