Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this Open Records Appeal by letter dated July 14 (mistakenly dated June), 2017, challenging the denial by Eastern Kentucky Correctional Complex ("EKCC") of his July 4, 2017, request for a "copy of the July 4, 2017 documents: 1) The Court Order authorizing the Use of Force to place IVs in Uriah Pasha and take blood from him; 2) Warden Kathy Litteral's Order Authorizing Use of Force to place IVs in Uriah Pasha 092028 and to take blood. " In a timely written response, Medical Records Secretary Amanda Carter advised Mr. Pasha that she conducted a "thorough search" of his "Medical Records file" but did not locate any responsive orders from either a court or the Warden; likewise, Offender Information Specialist Sonya Wright advised Mr. Pasha that she conducted a "thorough search" of his Kentucky Offender Management System file (KOMS) "and there is no court order authorizing use of force to place [IVs] in you and take blood. There is no order in your KOMS file from Warden Litteral authorizing use of force. " Ms. Wright further explained that she contacted Warden Litteral directly and Warden Litteral confirmed that "she never created such records." Warden Litteral further advised that her office "has not received any court order pertaining" to Mr. Pasha's request.
Upon receiving notification of Mr. Pasha's Appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC. Relying upon prior decisions by this office, Ms. Barker correctly observed that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess; a public agency discharges its duty under the Act in affirmatively indicating that no responsive documents exist. Likewise, a public agency is not required to "prove a negative" in order to refute an unsupported claim that certain records exist. Ms. Barker was also correct in asserting that Mr. Pasha's remaining claims are not justiciable in this forum; the Attorney General makes no finding as to how EKCC could "force feed" Mr. Pasha without a court order and/or approval by the Warden but does conclude, based upon the following, that EKCC discharged its duty under the Open Records Act.
As in 11-ORD-118, 11-ORD-214, 12-ORD-025, 12-ORD-161, 13-ORD-018, and 14-ORD-004, for example, this office declines to unnecessarily lengthen the instant decision with yet another summary of the relevant legal authorities given that Mr. Pasha "is no doubt familiar with the line of open records decisions issued by the Attorney General recognizing that, in general, public agencies that deny access to requested records based on the nonexistence of the records cannot be held to have violated the Open Records Act. " 11-ORD-118, pp. 1-2. See 11-ORD-037 (affirming the denial by correctional facility of a request by Mr. Pasha "in light of its explanation for the nonexistence of the records sought and the absence of any facts or law importing the records' existence"), 11-ORD-091, 12-ORD-027, 12-ORD-030, 12-ORD-050, 12-ORD-052, and 12-ORD-069, all of which affirmed the denials of requests by Mr. Pasha for nonexistent records; compare 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable").
In a series of decisions issued since Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d, 333, 340-341 (2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"), this office has affirmed public agency denials of requests based upon the nonexistence of responsive public records in the absence of a prima facie showing that records being sought did, in fact, exist in the possession of the agency. See 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189; 11-ORD-209; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ). "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. Because EKCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no responsive court order existed in the custody or possession of the agency nor did the Warden create any responsive order. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. Mr. Pasha "has produced no affirmative evidence, beyond mere assertions, that [EKCC] possesses such records as [he] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. In the absence of any facts from which existence of such records can be presumed or any legal authority mandating the creation and maintenance of such records, the Attorney General must affirm the agency's denial of his request per Bowling , and prior decisions of this office including those referenced above.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.