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 Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in responding to the open records request of inmate Uriah Pasha. On August 4, 2014, Mr. Pasha requested:
A copy of the Inmate Personal Property Form used to impound Uriah Pasha # 092028 property from LSCC SMU B-116 on April 9, 2014, when he was placed in Isolation for medical observation and receipt signed upon its return.
The request was received by Inmate Records on August 8, 2014.
On August 11, 2014, Beth Harper in the LSCC Records Department responded as follows:
A property sheet does not exist for 4/9/2014. A property sheet is not done when you change cells in Segregation. The last property sheet from Segregation on file is from 2/6/2014. If you want a copy of the property sheet from 2/6/20[1]4 please send a check payable to the Kentucky State Treasurer in the amount of .59 cents.
Mr. Pasha's appeal to this office was received on August 20, 2014.
In his appeal, Mr. Pasha claims that a property form must have been filled out on April 9, 2014, because "when a[n] Inmate is placed on watch his personal property is inventoried and impounded."
On August 28, 2014, Staff Attorney Alea Amber Arnett, Justice and Public Safety Cabinet, responded on behalf of LSCC. She indicates that the Department of Corrections policy referenced by Mr. Pasha is CPP 10.2, which states in part: "Upon assignment to a special management unit, an inventory of all personal property not authorized in the unit shall be made." She adds that Mr. Pasha was assigned to the special management unit on February 6, and simply moving to a different cell within the special management unit does not trigger the application of the policy. Therefore, she states, no new property inventory was created on April 9 when Mr. Pasha was moved to another cell for medical observation.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
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. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such record exists. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we conclude that LSCC did not violate the Open Records Act in its response to Mr. Pasha's request.
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 # 092028Beth HarperAmy V. Barker, Esq.