Request By:
Uriah Marquis Pasha
Teresa Shanklin
Amy V. Barker
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Green River Correctional Complex (GRCC) properly discharged its duty under the Open Records Act by affirmatively advising that the requested records do not exist.
By letter dated July 25, 2008, Uriah Marquis Pasha submitted a request to GRCC for "the documents that supports the 'DNR' Do Not Release inmate Uriah Pasha # 92028 from segregation hold currently pending in the Special Management Unit."
In his letter of appeal, dated August 4, 2008, Mr. Pasha stated that he had not received a response to his request.
In another letter to this office after the filing of his appeal, dated August 15, 2008, Mr. Pasha asserts the requested records exist.
After receipt of notification of the appeal, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, by letter dated August 21, 2008, provided this office with a response to the issues raised in the appeal. In her response, she advised that a response had been sent to Mr. Pasha on July 29, 2008. A copy of the response provided to this office is marked that it was received on July 29, 2008. The response, dated the same date, from Teresa Shanklin, Records Custodian, GRCC, to Mr. Pasha, advised:
Mr. Pasha, there are no documents that suggest or direct that you are not to be released from SMU, other than the disciplinary action on a Cat. 3 - 11 heard on 7/24/08. You were received at GRCC as an Admin. Seg. inmate pending review of your segregation status. Any questions regarding that issue should be directed to Warden Doom.
We address first Mr. Pasha's allegation that the GRCC failed to respond to his open records request. GRCC advised that it responded to Mr. Pasha's request on July 29, 2008, and provided this office with a copy of its July 29, 2008, response. Insufficient information is presented in this appeal for this office to conclusively resolve the factual dispute concerning the actual delivery and receipt by Mr. Pasha and we make no finding in this regard. See 05-ORD-013; 03-ORD-061.
Addressing the substantive issue, the GRCC affirmatively advised Mr. Pasha that there were no records responsive to his request. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The GRCC discharged its duty under the Open Records Act by affirmatively so advising and further advised Mr. Pasha that if he had any questions regarding the issue of his segregation status he should contact Warden Doom. Accordingly, under the facts presented, we find no violation of the Open Records Act. To hold otherwise would result in the GRCC "essentially hav[ing] to prove a negative" in order to refute Mr. Pasha's claim that such a record exists. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm GRCC's denial of Mr. Pasha's request in accordance with Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), and 08-ORD-154, p. 5.
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.