Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that, absent proof of delivery of Uriah Pasha's February 3, 2012, request to Eastern Kentucky Correctional Complex, EKCC did not violate the Open Records Act in failing to respond to his request for a copy of the "inmate grievance submitted by Uriah Pasha . . . December 2011 concerning inmates being handcuffed and chained to a rail in the shower while showering. " Further we find that, absent proof beyond a bare claim that a record responsive to this request exists, and that EKCC's search for that record was inadequate, EKCC did not violate the Act in denying Pasha's request in its response to his appeal.
In his letter of appeal, Pasha objects to EKCC's delay in responding to his request. He provides no proof, beyond a bare claim, that he submitted a grievance concerning an incident in EKCC's showers in December 2011. Corrections Policy 14.6 establishes specific timelines for informal and formal resolution of grievances, and requires the creation of documentation associated with each deadline. The existence of the requested grievance could be extrapolated from documentation generated in the informal or formal resolution of the grievance, but Pasha offers no such documentation in support of his claim that he filed a grievance in December 2011.
In correspondence submitted to this office after Pasha filed his appeal, EKCC responded through a Department of Corrections' staff attorney who denied both receipt of the request and the existence of "a grievance on the topic indicated in his request." Having conducted a search of the Procedures/Grievance Office, including the grievance log book, EKCC located other grievances filed by Pasha, but did not locate a December 2011 grievance relating to the handcuffing of inmates in the showers. In a response submitted to Pasha after he initiated this appeal, EKCC advised that his Procedures Officer, Sara Potter, "states she received no grievance from you during the month of December 2011 pertaining to inmates being handcuffed and chained to a rail in the shower while showering. "
We affirm EKCC's denial of Pasha's request based on the nonexistence of a responsive record and find insufficient evidence to support his claim of procedural noncompliance. EKCC's search did not yield a responsive grievance from December 2011 and Pasha offers no proof to the contrary. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. We believe that EKCC conducted such a search. Nor do we assign error to EKCC for failing to respond to an open records request where no proof exists that it reached the facility. Here, as in past appeals, we acknowledge our inability "to resolve a factual dispute concerning the actual delivery and receipt of . . . [an] open records request." 02-ORD-226, p. 2. Because the record on appeal is devoid of proof supporting Pasha's claim that he properly transmitted his request, we cannot determine that EKCC violated KRS 61.880(1) by failing to issue a timely written response.
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, # 092028Sonya WrightAmy V. Barker