Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated, or otherwise subverted the intent of, the Open Records Act in the disposition of Uriah Marquis Pasha's April 20, 2006, request for: (i) Corrections Psychiatric Treatment Unit Segregation Contract November 2005; (ii) CPTU B-wing Treatment Plan November 2005; [and] (iii) Discharge from CPTU B-wing Treatment Program. For the reasons that follow, we find that KSR did not violate the Act, insofar as it cannot produce copies of records that may have been destroyed, or were somehow otherwise misplaced, but that its apparent failure to implement an adequate program for insuring records preservation constitutes a subversion of the intent of the Open Records Act. Because this appeal raises significant records management issues, we have referred these issues to the Kentucky Department for Libraries and Archives.
Following the April 28 receipt of Mr. Pasha's request, CPTU Unit Administrator Brian Sewell notified Mr. Pasha that the requested documentation "[d]oes not exist . . . [and] would not be part of [his] institutional or CPTU file." On appeal, Mr. Pasha challenges this statement, identifying twelve "eye witnesses" to his participation in the program, and later providing this office with a copy of a KSR Monthly Statement, dated January 31, 2006, and bearing his name, on which he highlighted entries reflecting inmate pay for "CPTU Special Sanit. Rate 001.30 CPTU." Mr. Pasha noted that "inmates not in CPTU B-wing Program cannot receive state pay while assigned to disciplinary segregation. "
In the original supplemental response to Mr. Pasha's appeal, KSR reaffirmed the position that no records exist that satisfy his request "since he never participated in the program," but modified this position in subsequent correspondence. Upon review of the KSR monthly statement confirming that Mr. Pasha received state pay for work he performed while in the CPTU B-wing Program, KSP advised this office:
It has been discovered that the Central Office offender record maintained by the Department of Corrections contains two (2) separate voluntary placement requests dated November 3, 2005 was also located by KSR/CPTU Unit Administrator Brian Sewell today. As of this date, however, no other signed records, including the requested (i) CPTU Segregation Contract November 2005; (ii) CPTU B-wing Treatment Plan November 2005; and (iii) Discharge from CPTU B-wing Treatment Program, have been located by staff at the KSR/CPTU. Forms of the CPTU Disciplinary Segregation Contract and CPTU form are attached for your convenience of reference.
In light of this discovery, KSR agreed to conduct "a thorough search of the records maintained in the KSR/CPTU in an attempt to locate the records requested." Corrections counsel explained that the contract, treatment plan, and program discharge which Mr. Pasha requested "are maintained at the unit level only and are therefore not maintained as a part of the inmate's Central Office or institutional offender record."
By letter dated May 30, 2006, counsel notified this office that "a thorough search of all active file records maintained by the KSR Correctional Psychiatric Treatment Unit" yielded no results. Continuing, she observed:
One possible explanation for the omission of records that Mr. Pasha requests from KSR/CPTU is the fact that Mr. Pasha has two (2) aliases: Jacta Est Alea and Kenneth U. Ross. I have advised the KSR/CPTU to continue its search by looking through inactive file records, however, there will be no resolution of this matter within the time frame for an open records appeal before your office.
I have advised my client that your office will likely refer this matter to the Department for Libraries and Archives for any further inquiry that agency deems warranted. On behalf of the Department of Corrections and Kentucky State Reformatory, to your staff and especially to Mr. Pasha, I apologize for the incorrect information previously provided. Apparently, a filing error has occurred in this case and Mr. Pasha's records have been misplaced.
Because KSR cannot produce for inspection and copying records that have been misplaced or destroyed, we affirm its denial on the basis of the apparent nonexistence of those records, but focus on the interrelation between proper records management and records access statutorily recognized at KRS 61.8715.
Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880 and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure that efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. On this issue, the Attorney General has observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10.
The records at issue in this appeal fall within the parameters of Records Series No. 04065 of the Corrections Retention Schedule, the disposition instructions for which require a total retention of twenty years. Although it is unclear whether the records were misfiled or destroyed, KSR's inability to locate them is indicative of records mismanagement and may be appropriate for review by the staff of the Department for Libraries and Archives.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records, or explain by what authority the records were destroyed. The loss or destruction of a public record creates a presumption of records mismanagement, but that presumption is rebuttable. KSR offers a minimal explanation for its inability to produce the requested records, but its explanation is insufficient to rebut the presumption of mismanagement.
While we do not find, as a matter of law, that KSR violated the Open Records Act by denying Mr. Pasha's request for records which it was unable to locate, we do find that KSR 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 Mr. Pasha's right of access. Ultimately, we cannot afford him the relief he seeks, namely access to the records confirming his participation in the CPTU program. We have, however, referred this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted. Accord, 05-ORD-141; 01-ORD-176; 00-ORD-46; 98-ORD-200; 94-ORD-142.
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.
Uriah Marquis Pasha, # 92028Eastern Kentucky Correctional Complex5-AL-16200 Road to JusticeWest Liberty, KY 41472
Larry Chandler, WardenKentucky State Reformatory3001 W. Highway 146LaGrange, KY 40032
Sharon RoseInstitution CoordinatorEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Lisa HeightchewInstitution CoordinatorKentucky State Reformatory3001 W. Highway 146LaGrange, KY 40032
Brian SewellKentucky State ReformatoryKentucky State Reformatory3001 W. Highway 146LaGrange, KY 40032
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP.O. Box 537Frankfort, KY 40601