Request By:
Uriah M. Pasha, # 092028
Amanda Carter
Sonja Wright
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
Inmate Uriah Pasha has initiated three appeals by separate letters challenging the disposition of two identical open records requests dated July 18, 2017, and another requested dated July 19, 2017, by Eastern Kentucky Correctional Complex ("EKCC"). This office has consolidated the appeals, insofar as they pertain to the same records and actions by EKCC and are duplicative of a similar appeal previously addressed by this office.
Pasha has submitted two identical requests dated July 18, 2017. In each request, he sought "court orders; warden's orders; and physician orders" that were "used to authorize Nurse Aeriel Fredrick to use a use of force team to strap Uriah Pasha . . . in the restraint chair in order to forcefully draw blood and inject IV's in his left arm 7-4-17." The first request does not appear to have been received by EKCC, as it is not stamped as received and no disposition was documented on the request. The second request was stamped as received on July 19, 2017. EKCC responded to the second request on July 26, 2017, and stated that it did not possess any responsive records.
In a third request to EKCC, dated July 19, 2017, Pasha sought "[a] copy of the documents used to place Uriah Pasha . . . in the restraint chair July 4, 2017 and allow nurse Aeriel Frederick to place in IV in his arm and draw blood: 1.) Extraordinary occurrence report ["EOR"]; 2.) the order authorizing the use of force team to use force against him." By separate letters, EKCC responded on July 25 and 26, 2017, and indicated that it did not possess any responsive documents in either the medical records department or the inmate records department regarding an order. EKCC indicated that it was withholding the EOR under the security exemption because it would provide information that may become the basis for retaliation against other inmates or the institution.
Pasha initiated an appeal on July 26, 2017, by letter to this office, of EKCC's disposition of the first request, alleging that EKCC failed to respond in five working days. Also, on July 26, 2017, Pasha initiated an appeal of EKCC's disposition of his third request, alleging the requested records could not be deemed a risk to safety or security of the institution. Finally, Pasha initiated an appeal on July 27, 2017, by letter to this office, of EKCC's disposition of the second request, alleging that the records he sought must exist.
In response, EKCC argues that Pasha's appeal of the first request was prematurely filed because Pasha initiated the appeal prior to the five working day deadline in which the agency had to respond. EKCC noted that Pasha's identical request, which is also subject to appeal here, indicates that EKCC did respond within five working days. Therefore, EKCC argues the appeal of Pasha's first request should be dismissed.
As for the appeal of the second request, EKCC stated that the requested records were previously requested by Pasha and that Pasha has previously appealed EKCC's disposition of that request. We note that this office has rendered a decision with respect to that appeal. See 17-ORD-16. In that appeal, as it does here, EKCC maintained that it did not have responsive records. Further, EKCC indicates that it conducted an additional search outside of its institution, and located a record held at the DOC central office. In lieu of providing the custodian and address, EKCC obtained and provided the record along with its response to Pasha. That record is an email from an individual at Correct Care Solutions to an individual at the Department of Corrections. A personal phone number from that email was redacted in accordance to KRS 61.878(1)(a).
With respect to the appeal of the third request, EKCC informs this office that it previously disclosed the only medical record responsive to Pasha's request in a previous request for records that occurred on July 6, 2017. EKCC attached that request and its disposition to its response. EKCC has attached the email addressing the authorization of its use of force with this response, which was a responsive document to Pasha's second request and located at DOC central office, rather than EKCC. EKCC also states that it informed Pasha that it would provide the EOR requested in a letter dated August 15, 2017, and which is attached to its response. EKCC requested a signed money authorization form from Pasha prior to releasing the EOR records.
We agree that Pasha's appeal of the first request dated July 18, 2017, was premature. KRS 197.025(7) provides DOC and its institutions five (5) days, excepting Saturdays and Sundays, to respond to an open records request. From Pasha's three appeals to this office, it appears that Pasha claims he submitted two identical open records requests to EKCC on July 18, 2017. The first does not bear any indication that it was received by EKCC. However, the second was received by EKCC on July 19, 2017, and EKCC provided timely responses on July 26, 2017. If the first request was also received on July 19, 2017, EKCC had until July 26, 2017, to respond. Because there is no indication of when, or even if, EKCC received the first identical request, we can only assume it was received on the same day as the second identical request filed on the same day. Accordingly, we must also assume Pasha's appeal on July 26, 2017, was premature and not ripe for review, absent any proof of the contrary.
Pasha's appeal of the first identical request is confusing because EKCC did timely respond to Pasha's second identical request. Therefore, Pasha received a response from EKCC regarding the records he sought in both his first and second request and has appealed the substance of EKCC's disposition. With respect to that disposition by EKCC, as EKCC correctly noted in its response, this office previously addressed Pasha's request for a "court order" and a warden's order authorizing use of force to place an IV in Pasha on July 4, 2017. See 2017-ORD-162. Therein, we affirmed EKCC's response that the records did not exist on the basis that EKCC is not required to refute Pasha's unsubstantiated claim that such records exist. Id. Pasha raises the same issue in this appeal and again fails to substantiate his claims that the records sought actually exist. Therefore, we incorporate our analysis and holding in 2017-ORD-162 and affirm EKCC's disposition on the same grounds. That opinion is attached herein.
EKCC has obtained a responsive document from the DOC central office and provided it to Pasha in lieu of giving him the proper custodian from which to seek this record. Any issue related to that obtained record is now moot. See 40 KAR 1:030, Section 6 ("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.").
With respect to the third request, dated July 19, 2017, for the EOR and the order authorizing the use of force team to use force against Pasha, EKCC indicates and has conclusively proven that it informed Pasha on August 15, 2017, that it is providing him with the EOR upon his payment. Accordingly, that issue is moot. See 40 KAR 1:030, Section 6. As for the request for any order authorizing force, to the extent it seeks orders EKCC stated it did not possess, that issue is controlled by our previous opinion in 2017-ORD-162 because Pasha has failed to substantiate his claim that the records do exist. To the extent it seeks the email obtained from the DOC central office, that record has been provided in response to Pasha's second request and is therefore moot. See 40 KAR 1: 030, Section 6.
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.