Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Inmate requester initiated his appeal prematurely under KRS 197.025(7) by filing it on the fifth working day following receipt of the request and not allowing time for mail delivery. Kentucky State Penitentiary ultimately provided the requester with a copy of all existing responsive documents, mooting the related issues are now moot per 40 KAR 1:030 Section 6.
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in failing to issue a timely written response per KRS 197.025(7) upon receipt of Uriah M. Pasha's June 24, 2019, request for one copy of "each and every KDIC Inmate Property Form(s) and Seized Property Receipt [Form(s)] used to [i]nventory Uriah Pasha['s] #092028 property on the following dates: 10/24/2018; 04/18/2019; 04/22/2019; 04/24/2019; 05/01/2019; 06/19/2019; [and] 06/20/2019." 1Mr. Pasha initiated this appeal by letter dated July 1, 2019, attaching several disciplinary reports that were purportedly filed against him based on the information contained in the specified forms. Specifically, he alleged that KSP failed to respond within five working days; failed to conduct a search for the records; and failed to state whether the records existed. Based upon the following, this office finds that Mr. Pasha's appeal was both premature and unperfected. See 18-ORD-020; 18-ORD-116. However, the issues presented in his appeal became moot when KSP provided him with a copy of all existing responsive documents. See 40 KAR 1:030 Section 6.
Upon receiving notification of Mr. Pasha's appeal, Staff Attorney Angela E. Cordery, Justice and Public Safety Cabinet, responded on behalf of KSP. She first noted that KSP Open Records Coordinator Catherine Weicht responded to his June 24, 2019, request, which LAC received on June 25, 2019, (as the date stamped copy verifies) by memorandum dated July 2, 2019 a copy of which Ms. Cordery attached to her July 12, 2019 appeal response. Citing KRS 197.025(7), Ms. Weicht informed Mr. Pasha that "additional time is needed in order to provide a reply" because of the "large amount of documents you have requested to purchase and the availability of staff to research and assist in obtaining the records requested[.]" 2She advised that KSP would issue a final response on or before July 19, 2019. On appeal, Ms. Cordery provided a copy of Ms. Weicht's July 10, 2019, response, in which she stated, "Per CO Lukens, Property Room Officer, you have been provided one (1) copy of the following documents from your file as requested:" 1) Property Forms: 10/24/2018, 4/18/2019, 4/22-4/24/2019 (one sheet for both dates), 6/20/2019; 2) Canteen Sheet: 10/24/2018; and 3) Seized Property Sheets: 4/22/2019 (4 sheets); and 6/20/2019 (1 sheet). Ms. Weicht further explained that no "inventory/property sheet was created" for 5/1/2019 because his property was already packed in preparation for his transfer to the Restrictive Housing Unit ("RHU") prior to May 1, 2019; the property sheets dated April 24-25, 2019, "reflect the inventory that was accounted for" when he was transferred. Ms. Weicht stated that a public agency such as KSP cannot provide a nonexistent record for inspection or copying; Ms. Cordery reiterated this position, citing prior decisions by this office. With regard to responsive documents that KSP ultimately provided to Mr. Pasha, Ms. Cordery asserted that any related issues have been rendered moot per 40 KAR 1:030 Section 6. 3
KRS 61.880(2)(a) establishes the requirements and timeline for initiating an Open Records Appeal. That statute provides:
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
Mr. Pasha is an inmate confined in a penal facility, and KRS 197.025(3) therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." While this provision narrows the window of opportunity in which any inmate may appeal the disposition of a request by the Department of Corrections or a correctional facility under its jurisdiction, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. Because Mr. Pasha failed to allow KSP that opportunity when he mailed his appeal on the fifth working day following its receipt of his request (July 1, 2019), his appeal was premature and unperfected. Nevertheless, the record on appeal confirms that KSP ultimately provided him with a copy of all existing responsive documents; the related issues have therefore been rendered moot per 40 KAR 1:030 Section 6, pursuant to which: "If 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." See 03-ORD-087; 04-ORD-046; 19-ORD-024. As noted above, KSP cannot provide that which it does not have nor can peripheral allegations be resolved in the context of an Open Records Appeal. See KRS 61.880(2)(c).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
2 KSP implicitly relied upon KRS 61.872(5) in delaying its final response. However, the need to retrieve and review the records in dispute is not a sufficiently detailed explanation. See 15-ORD-029; 19-ORD-054. "Although KRS 197.025(7) modifies the three-day period [of KRS 61.880(1)] to a five-day period, the requirement to provide the detailed explanation is not negated." 17-ORD-262, p. 2 n. 1. See 18-ORD-144 (KRS 197.052(7) modifies the statutory period for a response by DOC and the agencies under its jurisdiction, but "KRS 61.872(5) requirements continue to apply to correctional facilities [and DOC]"); 18-ORD-074. The analysis of KRS 61.872(5) found in 19-ORD-054 is controlling on this issue.
3 During the pendency of this appeal, Mr. Pasha attempted to initiate a new appeal dated "July 2019." However, the attached request, dated July 17, 2019, again sought Inmate Property Forms dated April 22, 2019, and April 24, 2019. Ms. Weicht issued a timely written response per KRS 197.025(7), denying the request as duplicative. This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198; 13-ORD-055. Mr. Pasha's June 24, 2019, request encompassed the April 22, 2019 and April 24, 2019, forms, and his July 17 request was therefore duplicative to that extent. Unless a requester such as Mr. Pasha "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records," a public agency such as KSP is not required to satisfy the same request multiple times. 05-ORD-021, p. 8; 18-ORD-080.
As before, Ms. Weicht further confirmed that no responsive documents exist beyond those already provided in response to his original request dated June 24, 2019. A public agency cannot produce a nonexistent record for inspection or copying. See 14-ORD-245.; 15-ORD-137. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-091. Compare Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. Mr. Pasha's unsupported assertion that KSP provided him with a "newly created document" which is a "Forged Instrument" is a non-open records related issue that cannot be resolved in this forum under KRS 61.880(1). 99-ORD-121, p. 17; 14-ORD-023; 18-ORD-020. Likewise, "objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an open records appeal. 10-ORD-178, p. 2.