Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in failing to provide documents that did not exist. We find that LSCC did not violate the Open Records Act in failing to provide documents that did not exist.
Uriah Pasha ("Pasha") submitted an open records request to Little Sandy Correctional Complex on Feb. 14, 2014. Pasha requested "a copy of the memorandum Uriah Pasha 092028 submitted to Officer Holbrook -- Internal Affairs February 2014 requesting the Kentucky State Police; also, Officer Holbrook's response to said memorandum. " LSCC responded on Feb. 18, 2014: "granted -- a copy of letter written to Mr. Holbrook. Request for response is denied. A response does not exist." Pasha initiated this appeal on Feb. 21, 2014 on the grounds that "the agency denied the request for response without an explanation why it does not exist. The agency does not have to prove a negative but it does have to make a good faith effort to locate the document and report what efforts it made." Pasha then claims to have witnessed and reported a felony. LSCC responded on Mar. 5, 2014 that Pasha "offers nothing to indicate that the response exists and has failed to make a prima facie showing that the record exists," and "cites no authority to support his contention that the institution must report its search efforts to him in its response."
"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. "Public agencies cannot produce nonexistent records nor must public agencies "prove a negative" in order to refute a claim that certain records exist . . . ." Regarding Pasha's accusations that he reported a felony, "the Attorney General is not empowered to . . . resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 12-ORD-065. Accordingly, we find that LSCC did not violate the Open Records Act in failing to provide a response to a memorandum that did not exist.
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