Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Open Records Act in denying Uriah Pasha's February 2011 requests for records relating to an incident that occurred on January 30, 2011, that resulted in his placement in segregation. Although KSR promptly responded to each of Mr. Pasha's requests by advising him that no responsive records exist, thereby discharging its procedural duty, we find that these responses were deficient insofar as they reflect an unreasonably narrow interpretation of Mr. Pasha's requests and an inadequate search for responsive records.
Mr. Pasha submitted three open records requests to KSR in a three day period. These requests, and KSR's responses, are summarized below:
February 1, 2011
(Received Feb. 8): Mr. Pasha requests a copy of "the Extraordinary Occurrence Report issued . . . January 30, 2011, to have [him] placed in segregation" ;
February 8, 2011: KSR responds that Mr. Pasha's institutional file does not contain an Extraordinary Incident Report, as described, and that the agency has no obligation to create a record that does not already exist per OAG 82-234.
February 1, 2011
(Received Feb. 8): Mr. Pasha requests a copy of "the Information Report(s) filed by C/O Amanda Jones against [him] which resulted in" his placement in segregation on January 30, 2011;
February 8, 2011: KSR responds that his institutional file does not contain any such "reports filed by an Officer Amanda Jones 'against' [him] (dated 01/30/11)" and that it has no obligation to create a record per OAG 82-234.
February 3, 2011
(Received Feb. 8): Mr. Pasha requests a copy of "the Information Report that C/O Noonan wrote against [him] in connection with" his placement in disciplinary segregation on January 30, 2011, and "the reports submitted by C/O Brown and C.T.O. J. Ford concerning his January 30, 2011, detention."
February 8, 2011: KSR responds that Mr. Pasha's institutional file does not contain any such reports and that it has no obligation to create a record per OAG 82-234.
On appeal, Mr. Pasha insists that the requested documents must exist.
In supplemental correspondence directed to this office after Mr. Pasha initiated this appeal, Justice and Public Safety Cabinet staff confirmed that no responsive records exist. The Cabinet explained:
No EOR as described was prepared. Amanda Johns was the author of a disciplinary write-up, but did not prepare an information report as requested by Mr. Pasha. A detention order was prepared when placed in segregation, but the written informational reports requested were not prepared.
On behalf of KSR, the Cabinet emphasized that "[a] public agency cannot afford a requester access to a record that it does not have or that does not exist, and that the agency discharges its statutory obligation by affirmatively so stating."
This is ordinarily true under the rule announced in
Lexington Fayette Urban County Government v. Bowling, 172 S.W.3d 333 (Ky. 2005), where there are no facts or law that import the existence of public records. Here, however, Corrections Policies and Procedures provide that "[a]n alleged violation of rules and regulations shall be fairly processed[, and a]n inmate's due process rights shall be fully protected." Corrections Policies and Procedures 15.6II. In its original responses, KSR offers no explanation for the nonexistence of records documenting the incident and Mr. Pasha's placement in segregation. Although the Cabinet sheds some light on the available documentation in its supplemental response, it offers no additional explanation for the paucity of available records. CPP 15.6 is a thirteen page policy governing inmate adjustment procedures and programs and providing for the creation of, among other things, disciplinary reports, staff reports, inmate statements, and "evidence derived from witnesses and documents." CPP 15.6II.B.1.a. The record on appeal provides no plausible explanation for the nonexistence of these or other records.
In 10-ORD-051, a copy of which is attached hereto and incorporated by reference, this office determined that the record on appeal contained insufficient proof that the agencies to which open records requests were directed "conducted an adequate search for records presumed to exist." We ultimately concluded that the Attorney General could not "approve agencies' denials based on the records' apparent nonexistence in the absence of such proof." 10-ORD-051, p. 1. In a 2008 open records decision involving Mr. Pasha, we found that a correctional facility "provided a credible explanation for the nonexistence of the requested [record]" and affirmed its denial of his request. 08-ORD-015, p. 5. A copy of 08-ORD-015 is also attached hereto. We refer the parties to the one-plus page explanation for the nonexistence of the record which Corrections provided to this office in supplemental correspondence. We believe that the appeal before us is more closely analogous to 10-ORD-057 than 08-ORD-015, given this absence of proof of an adequate search and a plausible explanation for the nonexistence of the records sought.
KSR's response demonstrates that it limited its search for responsive records to Mr. Pasha's institutional file. Mr. Pasha did not so limit the scope of his request. Neither KSR nor the Cabinet advised Mr. Pasha whether additional responsive records exist elsewhere. For example, CPP 15.6II.H.5 states that disciplinary reports "shall not be placed in the inmate's institutional or central office file . . . ." We believe it was incumbent on KSR to "make a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." 11-ORD-031, p. 3, citing 95-ORD-96, p. 7; see also 10-ORD-051.
Moreover, Mr. Pasha requested the "information reports" filed by named corrections officers following the incident. Although KSR originally denied the existence of any responsive records, in its supplemental response the Cabinet acknowledged that Officer Amanda Johns prepared a disciplinary write-up. As Kentucky's Supreme Court observed in
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008):
[W]e are aware that an inmate's open records request is subject to the limitations contained in KRS 197.025. That statute governs access to inmate and facility records. Nothing in that statute, however, contains any inmate-specific particularization requirement. Rather, KRS 197.025(2) only mandates that the DOC comply with an inmate's records request if "the request is for a record which contains a specific reference to that individual." The inmate complied with that requirement because he only requested nonconfidential matters contained in his own WKCC file. In short, as the Court of Appeals correctly held, "[n]othing in KRS 197.025 ? authorizes the DOC to require an inmate to offer a more detailed description of the records he or she wishes to see."
. . .
[W]e express our agreement with the District Court of Rhode Island's astute holding that an open records request should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure.
Chestnut at 662 citing
Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979); accord, 11-ORD-028.
Like the inmate's request in Chestnut, Mr. Pasha's request "was adequate for a reasonable person to ascertain the nature and scope . . . . He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen." Chestnut at 661. Mr. Pasha sought access to records relating to the January 30 incident that resulted in his placement in segregation. KSR's response was deficient insofar as it failed to acknowledge the existence of at least one arguably responsive record, and the Cabinet only partially mitigated this error in its supplemental response. It is incumbent on KSR to conduct a search for responsive records that extends beyond Mr. Pasha's institutional file and to provide him with any nonexempt responsive records that search yields. If the search yields no additional responsive records, it is incumbent on KSR to so advise Mr. Pasha and to provide a plausible explanation for the nonexistence of records contemplated by its own policies and procedures.
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.