Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question at issue in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in not responding to part of a request, and failing to provide documents which did not exist. We advise that LSCC procedurally violated the Open Records Act in failing to respond to part of a request for records, but did not substantively violate the Open Records Act in failing to provide documents which did not exist.
Uriah Pasha ("Pasha") submitted an open records request to LSCC on Feb. 13, 2014. Pasha requested "a copy of the four (4) memorandums Uriah Pasha 092028 submitted to the Adjustment Hearing Supervisor 02/11/2014, RE: Disciplinary DR # LSCC-2014-00168." LSCC responded on Feb. 18, 2014 that "3 memos were received. They are enclosed. A 4th memo does not exist. "
Pasha initiated this appeal on Feb. 23, 2014, claiming that "the memorandum is already in the Attorney General's office so it does exist," identifying the memorandum as written questions for officer James C. Allen, and accusing LSCC of concealing records, tampering with evidence, and committing hate crimes. Pasha attached a disciplinary report form for incident DR #: LSCC-2014-00168. LSCC responded on Mar. 7, 2014, acknowledging that "it misread the request and did not provide a response concerning the responses to the memos. " It stated that the memorandum alleged by Pasha to be in the Attorney General's office was attached to another Pasha appeal, log # 201400095. It further stated that "one of the requested memos was not received by the adjustment officer (but has been attached from the other appeal). Responses were not made to the memos. " LSCC provided Pasha with a copy of the memorandum in its response. LSCC argues that a public agency cannot afford a requester access to a document that does not exist, and that the request for the fourth memorandum is now moot, since it has been provided to Pasha.
Regarding the fourth memorandum, 40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Since Pasha has been provided the requested memorandum, the request for it is now moot.
Regarding the agency responses, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
In not providing a written response to Pasha's request for responses to his memorandums, LSCC procedurally violated the Open Records Act.
LSCC now states that the requested responses to the memorandums do not exist. "A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. "In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess."09-ORD-214. Accordingly, we find that LSCC did not violate the Open Records Act in failing to provide nonexistent responses to Pasha's memorandums.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Uriah Pasha # 092028Beth HarperAmy V. Barker