Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in partially denying the requests of Uriah M. Pasha for various records concerning his "special religious diet for Lent." Although Mr. Pasha submitted two separate requests on April 13, 2007, and a related but separate request on April 18, 2007, the appeals involve the same requester, the same public agency, and similar public records; the appeals are therefore consolidated for purposes of adjudication under KRS 61.880(2)(a). Because the KSP does not possess any records which are responsive to Mr. Pasha's requests aside from those already provided, the KSP fully complied with relevant provisions of the Open Records Act in affirmatively indicating as much to Mr. Pasha in a written response following an adequate search and providing a credible explanation for the lack of additional documentation; a public agency cannot produce for inspection or copying nonexistent records nor can this office resolve disputes concerning discrepancies between the records being sought and those provided.
On April 13, 2007, Mr. Pasha directed two separate requests for memorandums to "KSP Records"; the requests were received on April 16, 2007. More specifically, Mr. Pasha requested the following:
. Joe Stuart, Deputy Warden's February 2005, Memorandum authorizing Uriah Pasha #92028 to receive Special Religious Diet for Lent; and Joe Stuart, Deputy Warden's February 2004, Memorandum authorizing Uriah Pasha #92028 to receive Special Religious Diet for Lent. [sic]
. KSP Chaplain's February 2005 Memorandum authorizing Uriah Pasha #92028 to receive Special Religious Diet for Lent 2005 [sic]
In timely written responses dated April 17, 2007, and April 20, 2007, respectively, which are nearly identical, Deputy Warden Stuart and Chaplain Sheila Burnham advised Mr. Pasha that such records do not exist or cannot be located. Citing 93-ORD-134 and 99-ORD-150 in support of their position, Deputy Warden Stuart and Chaplain Burnham noted that a public agency "cannot afford a requestor access to records that it does not have or which do not exist[,]" but "discharges its duties under the Open Records Act by affirmatively so stating." By letter dated April 17, 2007, Mr. Pasha initiated his first appeal (identified herein as Log Number 200700261), challenging the disposition of the former written request on the basis of 06-ORD-109 and because KRS 171.710-740 "requires records to be maintained for 20 years." Reiterating his previous arguments, Mr. Pasha appealed from the response to the latter written request by letter dated April 20, 2007; Mr. Pasha also challenged the nearly identical response of the KSP to his final request dated April 18, 2007, in which he asked for a "copy of the Special Religious Diet Food Service provided for Uriah M. Pasha #92028 February 2005, and March 2004 which consisted of no meat on Fridays during Lent 2004 and 2005, as it was recorded by Food Service at KSP."
Upon receiving notification of Mr. Pasha's first appeal (Log No. 200700261) from this office, Emily Dennis, Justice and Public Safety Cabinet, Office of Legal Services, responded on behalf of the KSP. As explained by Ms. Dennis, KSP Warden Tom Simpson "located in the Warden's Office files a copy of the Memorandum dated February 10, 2005," when reviewing KSP records in preparation for the KSP's response. A copy of the responsive memorandum is attached to Ms. Dennis' response. To the extent that Mr. Pasha relies upon the failure of the KSP to locate the Deputy Warden's February 2005 memorandum in response to his initial request, Ms. Dennis correctly argues that any related issue was rendered moot by disclosure of the record per 40 KAR 1:030, Section 6. 1
Following a "diligent search of the Warden's records, Chaplain's records, the Food Service Director's records and Deputy Joe Stuart's records," the KSP failed to locate a memorandum dating back to February 2004. Assuming that said memorandum existed, the KSP has not violated the Open Records Act in failing to maintain a copy since it "bears no similarity whatsoever to the CPTU records that were at issue in 06-ORD-109." 2 As correctly observed by Ms. Dennis, this office found that CPTU records 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 (20) years. In addition, Mr. Pasha "offers no proof whatsoever that he wrote or that Deputy Warden Stuart generated a memorandum to the Food Service Department authorizing a special diet during the 2004 Lenten season for Mr. Pasha." Even assuming that Deputy Warden Stuart generated such a memorandum in 2004, it constituted General Correspondence (Records Series # M0002) according to Ms. Dennis, who elaborates as follows:
Pursuant to the General Retention Schedule for State Agencies, general correspondence is not crucial to the preservation of the administrative history of the agency. It is generally of a nonpolicy nature, without permanent value, and should be retained by an agency no longer than two (2) years. For all practical purposes, a memorandum from an institutional deputy warden regarding an inmate's request for a special diet during a religious season has no value once the religious season has passed.
For these reasons, Mr. Pasha fails to demonstrate that the KSP violated the Open Records Act in responding that "a general correspondence record from February 2004 cannot be located or does not exist." Because Ms. Dennis is correct in this assertion, the response of the KSP must be affirmed.
Upon receiving notification of Mr. Pasha's subsequent appeals (identified herein as Log Numbers 200700282 and 200700283), Ms. Dennis submitted a combined response on behalf of the KSP. Noting the similarity between Mr. Pasha's other written request of April 13, 2007, Ms. Dennis explains there is not a record which is responsive to his request for the following reasons:
First, the KSP Chaplain has no power to authorize a particular inmate to receive a special religious diet. The Chaplain may be consulted regarding the type of food to be offered during particular religious seasons and to confirm that certain inmates practice a particular religion; however, that did not happen in Mr. Pasha's case since he directed his request to Deputy Warden Stuart. Also, in February 2005, there was no full time Chaplain employed at the KSP. Patti Treat, [P]rogram Director and [G]rievance [C]oordinator, was the acting Chaplain due to the January 31, 2005 retirement of former Chaplain Joe O'Cull. However, Ms. Treat has no record of Mr. Pasha requesting a special religious diet, most likely because Mr. Pasha knew she had no authority to grant his request and therefore did not send the request to her.
That being said, Ms. Dennis notes that she "informed the KSP that the standard response when no records exist requires a more detailed explanation than simply no records exist or can be located." Her supplemental response "clarifies why no record exists" in this case.
Referencing Mr. Pasha's letter of May 11, 2007, in which he "erroneously argues" that "[w]hether they are special religious diets or special medical diets they fall within the parameters of Records Series No. 04065 of the Corrections Retention Schedule, the disposition for which require[s] a retention for twenty (20) years[,]" Ms. Dennis correctly notes that special religious diets are "clearly not Inmate Medical File records, to which Series 04065 applies." According to the Department of Corrections Records Retention Schedule (approved December 2006), Series No. 04065 "documents the medical information obtained for each inmate housed in correctional institutions in Kentucky. It is created by the staff at each institution and provides medical information regarding inmate sicknesses, diseases or accidents." More specifically, Series No. 04065 encompasses psychological evaluations, psychiatric evaluations, medical screenings, notes of physicians, documentation of trips to clinics and hospitals, dental records, and results of vision tests. "Conversely, Series 03017 for 'Menu' specifies only a one year agency retention period." Contrary to Mr. Pasha's assertions, this "is not a case in which KSP officials are tampering with physical evidence. In any event, there are no records responsive to [his] request for the reasons specified above."
Turning to Mr. Pasha's most recent appeal, Ms. Dennis first addresses the "conclusory allegations" contained in his letter of May 9, 2007, that DOC officials are tampering with physical evidence as well as lying and destroying documents, observing that "Mr. Pasha offers no proof of fact." To the contrary, the "fact is that there are no records that specifically refer to Uriah M. Pasha #92028 and the special religious diet food service provided to him during the referenced time period as recorded by Food Service at the KSP." As explained by Ms. Dennis, Food Service records "indicate only the number of different trays sent to various areas and do not indicate a specific tray or food service to be provided to a specific inmate, such as Mr. Pasha." To the extent said records only reflect "the numbers of different types of trays sent to various areas, these records are not identified by inmate and therefore [are] exempt from disclosure to inmates pursuant to KRS 197.025(2)," incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 3 In conclusion, Ms. Dennis reiterates that she has informed the KSP "to provide more particular information in a response" when a record is nonexistent or cannot be located; however, notwithstanding that each of the KSP responses "should have explained in greater detail why certain documents do not exist, there is no basis upon which to find that the KSP violated the Kentucky Open Records Act or the State Archives and Records Act." Based upon the foregoing, this office agrees.
As long recognized by the Attorney General, a public agency is not required to honor a request for nonexistent records or those which it does not possess. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the KSP cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 4 In addressing the obligations of a public agency when denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has repeatedly held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the KSP ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When a public agency denies the existence of records in dispute, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1); this office is without authority to deviate from that statutory mandate. 5
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct the investigation).
Under circumstances like those presented, further inquiry is not warranted. As in the cited decisions, the record is devoid of evidence to raise the issue of good faith. To the contrary, the position of the KSP is credible insofar as the 2004 memorandum (Log No. 200700261) would properly be characterized as General Correspondence, which is governed by Record Series No. M0002 of the General Schedule for State Agencies, the disposition instructions for which mandate retention for no more than two (2) years; accordingly, any such memorandum could have properly been destroyed. Likewise, the KSP has adequately explained the reasons why it does not possess a record which is responsive to Mr. Pasha's second request of April 13, 2007 (Log No. 200700282), even assuming the Chaplain would have created such a record; the existing memorandum directed to Mr. Pasha from Deputy Warden Stuart, a copy of which has been provided to him, further validates this assertion by the KSP. Because the KSP has denied the existence of any record which matches the description provided in Mr. Pasha's final request and, in any event, the KSP is not required to honor the request unless the records contain a specific reference to him under KRS 197.025(2), this office has no basis upon which to find a violation of the Open Records Act in Log No. 200700283. Assuming the KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record indicates, the KSP cannot be said to have violated the Act in denying requests for nonexistent records. 05-ORD-109, p. 3.
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.
Footnotes
Footnotes
1 As indicated by Ms. Dennis, 40 KAR 1:030, Section 6 provides: "Moot complaints. 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 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office assumes that Mr. Pasha has received a copy of the only existing record which is responsive to his request for the February 2005 memorandum; any related issues are therefore moot per 40 KAR 1:030, Section 6 and this office must decline to issue a decision relative to same.
2 More specifically, the records at issue in 06-ORD-109 were identified as the Corrections Psychiatric Treatment Unit Segregation Contract November 2005, the CPTU B-wing Treatment Plan November 2005, and the Discharge from CPTU B-wing Treatment Program. Relying heavily upon 94-ORD-121, this office concluded that records like those requested fall within the parameters of Records Series No. 04065 of the Corrections Retention Schedule. While this office declined to find, as a matter of law, that the Kentucky State Reformatory had violated the Act by denying Mr. Pasha's request for records which it was unable to locate, we did 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." Consequently, this office referred the matter to the Department for Libraries and Archives for additional inquiry as that agency deemed warranted. Id., p. 5.
3 With regard to application of KRS 197.025(2), the analysis contained in 04-ORD-076, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. See 05-ORD-272.
4 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
5 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-ORD-032; 02-ORD-89. 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 04-OMD-182 (questions regarding the authenticity of an agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records; the Attorney General refused to consider this issue). As in the cited decisions, this office finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal and, therefore, declines to assign error on this basis. If Mr. Pasha has evidence the KSP willfully concealed more accurate or current records, he may wish to consider the options available under KRS 61.991(2)(a); the record on appeal is devoid of such evidence.