Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Open Records Act in the disposition of inmate Uriah M. Pasha's September 21, 2001, request for "[a]ny and all Inmate Canteen Receipts showing items Uriah Pasha # 92028 purchased during the period of May 1, 2001 [thru] June 30, 2001." For the reasons that follow, with the exception of the incorrect initial response, we affirm the KSR's disposition of Mr. Pasha's request.
KSR's initial response denied Mr. Pasha's request, advising him:
Your request is actually a request for information. The Office of the Attorney General has consistently held that the "Open Records" provision does not require public agencies to carry out research or compile information to a given request." OAG 89-45. Therefore, your request is denied.
Shortly thereafter, by letter dated October 2, 2006, Mr. Pasha initiated the instant appeal.
After receipt of notification of the appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, by letter dated October 20, 2006, advised that she was working with the KSR and Department of Corrections Central Office (DOC) to resolve the open records issues involved in Mr. Pasha's appeal and asked for additional time to file a final agency response.
By letter dated October 26, 2006, Ms. Dennis advised this office that the KSR initial response to Mr. Pasha was incorrect in that it was not a request for information, but a request for precisely described information and that she had asked KSR and DOC to determine if and where there were records responsive to his request. She further advised:
. . . I have been informed that there is the possibility that the records are stored on backup tapes at the KSR. During the time Mr. Pasha was at KSR, a problem was discovered in the computer program that archives KSR records to the Kentucky Inmate Management System (KIMS) central office master file. The bug was detected and repaired, but apparently some of the KSR data was not recovered. I will provide you with additional information as it becomes available. . . .
By letter dated October 31, 2006, Ms. Dennis provided this office with KSR's final agency response to the issues raised in the appeal. She advised that correct initial response to Mr. Pasha's request would have informed him that the KSR did not possess any inmate canteen receipts showing the items he purchased during the time frame in question (May 1, 2001 - June 30, 2001), but that they may exist at the Kentucky Department of Corrections, Division of Administrative Services, Attn: Pete Oldham 275 E. Main Street, P. O. Box 2400, Frankfort, KY 40601-2400. However, she stated that when KSR and DOC conducted the search for the records after the initiation of the appeal, no inmate account records reflecting canteen receipts that show purchases by Mr. Pasha were located. Explaining the agencies' search efforts to locate the requested records, Ms. Dennis advised:
Inmate canteen receipts are reflected in inmate account statements that are electronically maintained in the Kentucky Inmate Management System (KIMS). Each institution has a midsize computer system for which inmate accounting records are run locally and archived to the KY DOC mainframe computer on a daily basis. In addition, when an inmate is transferred from one institution, the transferring institution loses access to the inmate's account information as reflected in KIMS. KY DOC Central Office has access to the inmate's account information and advises that institutions, such as the KSR, should maintain copies of backup data in the event of KIMS system failure.
According to DOC IT Supervisor Donna West, during 2001, a problem was discovered in the computer program that archives KSR records to the Kentucky Inmate Management System (KIMS) central office master file. The bug was detected and repaired, but apparently some of the KSR data was not recovered. A review of KSR backup tapes revealed information dating from November 1995 through February 23, 2001, just a few months short of the dates for which Mr. Pasha requested information. However, no other backup tapes were located.
Obviously, an agency cannot provide copies of records that it does not have or no longer exist. Moreover, on the subject of adequate documentation of an agency's search, this office has observed:
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 83-11; 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.
94-ORD-141, p. 5. In the appeal before us, the KSR documented the efforts that were made to locate records responsive to Mr. Pasha's request. On the record before us, we conclude the agency discharged its duty and satisfied the higher standard of review which we have applied since the enactment of the 1994 amendments to the Act.
Moreover, we believe that the search methods employed by the KSR were those which could reasonably be expected to produce the records requested. 95-ORD-96. This is the standard by which the Attorney General measures the adequacy of an agency's search for public records. Since nothing appears "to raise the issue of good faith," we "need not go further to test the expertise of the agency, or to question its veracity . . . ." 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Nothing in the record suggests a purposeful attempt on the part of the KSR to evade its duty to conduct an adequate search for responsive records. We therefore affirm the KSR's denial of Mr. Pasha's request on the basis of the nonexistence of any responsive records.
The KSR has acknowledged that its initial response was incorrect and we will not belabor this point. DOC advised in its final agency response to this office that open records training has been scheduled at KSR in an effort to ensure more correct responses in the future.
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 M. Pasha, # 02028Green River Correctional ComplexP. O. Box 9300Central City, KY 42330
Emily DennisOffice of Legal ServicesJustice & Public Safety Cabinet125 Holmes StreetFrankfort, KY 40601
Beverly HornbackSupervisor, Inmate AccountsKentucky State ReformatoryLaGrange, KY 40032