Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of an open records request by inmate Uriah Pasha dated June 29, 2013, and received July 11, 2013. For the reasons that follow, we are unable to find a violation of the Act but must refer this matter to the Department for Libraries and Archives.
In his request, Mr. Pasha asked for a copy "the Warden's Review of Grievance No. # 13-03-056-G, for Uriah Pasha 092028." On July 15, 2013, Acting Grievance Coordinator Skyla Grief responded that "the requested document cannot be located." A memo from Ms. Grief bearing the same date stated: "It has been discovered that the original documents for Grievance # 13-03-056-G have been misplaced. ? Internal tracking indicates that the Warden did respond after the committee hearing, but the grievance office did not enter the log as being sent to grievant."
Mr. Pasha's appeal to this office was received on July 26, 2013. On August 7, 2013, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded in pertinent part as follows:
KSP acknowledges that it is required to retain a copy of the warden's review portion of the grievance for the time required under the retention schedule and that is the normal practice of the institution. There was a change in the staff responsible for the grievance records and a staff person has been out on leave for an extended period. Somehow in this transitional period, the warden's review was inadvertently lost. The warden's review has been completed again and a copy of the new review has been sent to inmate Pasha.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. We therefore do not find a violation of the Open Records Act. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the documents have been lost by KSP, which indicates a records management issue.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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, Esq.Ms. Skyla Grief