Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Green River Correctional Complex violated the Kentucky Open Records Act in the disposition of inmate Uriah Pasha's January 27, 2010, request for copies of his "Classification Record, Reclassification Forms, and Classification Appeal correspondence . . . dated during the period of October 1, 2006, through December 1, 2006." In a timely written response, Vanessa Dortch, Offender Information Specialist I, advised Mr. Pasha that his "Classification Record" and "Reclassification Forms" were enclosed; 1 however, Ms. Dortch "was unable to locate correspondence dated October 1, 2006 thru December 1, 2006 referencing a Classification Appeal." 2 Accordingly, Ms. Dortch asked Mr. Pasha to resubmit his request "and include the date of the actual classification action" to which the correspondence was related. 3 Mr. Pasha subsequently initiated this appeal. For the reasons that follow, the agency's ultimate disposition of Mr. Pasha's request is affirmed.
Upon receiving notification of Mr. Pasha's appeal from this office, Stafford Easterling, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of GRCC, in relevant part, as follows:
. . . Here, on a practical note, it is important to mention that [the] record in question is likely a handwritten document prepared by Inmate Pasha, similar to the Open Record[s] appeal filed herein. While Inmate Pasha's Open Record[s] appeal in this instant case included a caption, the record in question may or may not have included any identifying information to delineate this particular record being requested from the profligate volume of Inmate Pasha's other handwritten documents, i.e. grievances, Open Records appeals, threats of civil action, etc.
. . . Given Inmate Pasha's vast repository of handwritten, unlabeled documents, Ms. Dortch's inability to locate one particular handwritten, unidentifiable document from the sea of Inmate Pasha's handwritten unidentifiable documents is justified because the record requested was not identified with enough specificity to allow the public agency to identify and locate the records. See 03-ORD-213, 03-ORD-12, 02-ORD-161. Further Ms. Dortch could have properly denied Inmate Pasha's request because the record was nonexistent as described. See 02-ORD-208, 98-ORD-200.
Instead, Ms. Dortch has agreed to keep searching through Inmate Pasha's volumes of documents for a particular record, which may or may not have any identifying information set out therein. To help her search, all Ms. Dortch requested from Inmate Pasha was for him to resubmit his request "includ[ing] the date of the actual classification action [to] which the appeal correspondence was related." In other words, given the Open Records request submitted by Inmate Pasha, Ms. Dortch was not able to identify the classification action referred to by Inmate Pasha, much less locate the handwritten document appealing that classification action.
In response to an electronic inquiry from the undersigned counsel regarding the status of Mr. Pasha's request for "correspondence dated October 1, 2006 thru December 1, 2006 referencing a Classification Appeal," 4 Mr. Easterling advised that GRCC did further investigation regarding Mr. Pasha's claim(s). Because GRCC did not review Mr. Pasha's classification during the specified time period, Mr. Easterling confirmed, GRCC is "not in possession of an appeal of a classification action that did not occur. In other words, GRCC has concluded the requested record does not exist." Having determined that no such record(s) exists, GRCC "would now like to specifically state that the record does not exist" and that it "reached that conclusion following a thorough review of [Mr.] Pasha's 2006 filings from amongst [his] voluminous institutional record." Because GRCC has now confirmed that no record(s) exists which is responsive to his request, and ultimately provided an entirely credible reason that no such records were created, following a thorough search of his file(s), GRCC has discharged its duty under the Act; public agencies do not have to "prove a negative" in order to refute a claim such as Mr. Pasha's.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought 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. 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 a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist as GRCC ultimately asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 5 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University). When, as in this case, a public agency denies that any responsive documents exist beyond those already provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
In responding to Ms. Pasha's appeal, GRCC affirmatively indicated that no documents existed which matched the description provided; GRCC later conducted a thorough review of the records in his file(s) that were generated in 2006 but found nothing that was potentially responsive. GRCC now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Pasha's claim that additional records exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 6 In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189.
In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Because GRCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," as the record on appeal establishes, GRCC complied with the Act, regardless of whether the search yielded any results, by affirmatively indicating that no record(s) was located, and ultimately providing a credible explanation as to why no such record would have been created to begin with. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101. To hold otherwise would result in GRCC "essentially hav[ing] to prove a negative" to refute a claim that additional records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 3. 7 In light of these determinations, consideration of the remaining arguments raised is unnecessary.
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 Pasha, # 92028Vanessa DortchStafford Easterling
Footnotes
Footnotes
1 Any related issues are moot per 40 KAR 1:030, Section 6.
2 Ms. Dortch noted that her inability to locate such records "may be due to the large amount of paperwork enclosed in each of [Mr. Pasha's] 8 institutional files."
3 As the Attorney General has consistently recognized, "a request for clarification is not properly characterized as a denial." 06-ORD-206, p. 7; see 04-ORD-083; 03-ORD-067.
4 By letter dated February 16, 2010, a day prior to Mr. Easterling's response, Mr. Pasha supplemented his appeal, noting that he was "placed on Maximum Assaultive Status and Double Escort" during that period by the Classification Committee, but "there's no entry between 9/14/06 to 11/20/06." Mr. Pasha went on to argue that his Classification Record should not be "void of that date" and ultimately alleged that GRCC is guilty of "Tampering With Physical Evidence," failing to comply with applicable records retention schedules, etc. It suffices to say that allegations of records tampering or concealment are not justiciable in this forum. No evidence has been presented in this appeal that would justify this office in referring the instant appeal to the Kentucky Department for Libraries and Archives because if no responsive document(s) was ever created, as GRCC ultimately established, then GRCC cannot very well be accused of not properly maintaining it.
5 See KRS 61.8715.
6 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
7 In other words, to the extent Ms. Pasha questioned the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "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; 04-ORD-032.