23-ORD-028
February 7, 2023
In re: Uriah Pasha/Kentucky Parole Board
Summary: The Kentucky Parole Board (“the Board”) did not violate
the Open Records Act (“the Act”) when it explained why it could not
provide a copy of a record that no longer exists.
Open Records Decision
Inmate Uriah Pasha (“Appellant”) submitted a request to the Board for a “copy
of the Recording of the Parole Board Hearing for [the Appellant], October 2020.” In a
timely response, the Board denied the request because “[i]n compliance with [the]
State Agency Records Retention Schedule, recorded Parole Hearings records are
retained in the Agency for eighteen (18) months and then destroyed or erased and
reused[.] [T]herefore, [it] does not have any records responsive to [the Appellant’s]
request.” This appeal followed.
Once a public agency states affirmatively it does not possess responsive
records, the burden shifts to the requester to present a prima facie case that
requested records do exist in the possession of the public agency. See Bowling v.
Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester
is able to make a prima facie case that the records do or should exist, then the public
agency “may also be called upon to prove that its search was adequate.” City of Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341). Moreover, if evidence supports a finding that requested records
should exist but do not, the requester “is entitled to a written explanation for their
nonexistence.” Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011).Here, to make a prima facie case, the Appellant cites 06-ORD-109, stating “the
record should not have been destroyed until 18 months after the parole was revoked
or the parole was served out.” The Appellant further states, “As long as the parole
was active the hearing recording was relevant and needed, to be saved.” The
Appellant does not cite to any authority for these statements other than the decision
he cited.
In 06-ORD-109, the Office found the agency did not violate the Act when it
failed to produce records that were misplaced or lost but also that it subverted the
intent of the Act “through its apparent failure to establish effective controls over the
creation, maintenance, and use of the records, thereby frustrating [the Appellant’s]
right of access.” The decision cited by the Appellant does not explicitly state the Board
must retain the requested record beyond 18 months. Nor does the decision stand for
the proposition that the Board must retain the record until “after the parole was
revoked or the parole was served out.” Rather, Series 04540 of the Board’s retention
schedule states recordings of the Board’s hearings shall be retained for 18 months
and then either be destroyed or erased and reused.1 Thus, the Appellant has failed to
make a prima facie case the record should still exist.
Unlike the decision cited by the Appellant, here, the requested record was
destroyed in compliance with the Board’s records retention schedule. So, although the
Board admits the requested record did exist at one time, it also explained why the
record does not currently exist. Accordingly, this Office cannot find the Board violated
the Act when it explained why it could not provide a copy of a record that no longer
exists. See Eplion, 354 S.W.3d at 603.
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
1
See
Series
04540,
Parole
Board
Retention
Schedule,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Record…
Board.PDF (last accessed February 7, 2023).Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#012
Distributed to:
Uriah Pasha, #092028
Amy V. Barker,
Lydia Kendrick
Ann Smith