Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, 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 Kentucky State Reformatory did not violate the Open Records Act in denying the existence of records responsive to Uriah Pasha's February 11, 2011, request for copies of "[a]ll entries signed electronically by Julie Barber, Psychologist (KSR) between December 20, 2010, through December 31, 2010." It is the decision of this office that 08-ORD-015 and 11-ORD-014, copies of which are attached hereto and incorporated by reference, are dispositive of the issue on appeal. Because KSR offered a plausible explanation for the nonexistence of "entries signed electronically by Julie Barber," and there are no facts or law importing the existence of those records, we conclude that the agency satisfied the statutorily assigned burden of proof in sustaining its denial of Mr. Pasha's request.
In supplemental correspondence directed to this office on February 28, 2011, Justice and Public Safety Cabinet staff explained why the requested notes do not exist:
Mr. Pasha asserts that since he had a behavior control report on December 20, 2010, the notes have to exist. Counsel has contacted KSR staff and has been informed the records sought by Mr. Pasha do not exist. Notes are created by a psychologist in the EMR that are relevant to mental health or treatment related matters. In most cases, the completion of a [behavior control report] does not warrant an entry in EMR. Julie Barber did not create notes in the EMR pertaining to the [behavior control report] for the requested time period. The records do not exist.
On behalf of KSR, the Cabinet reaffirmed its belief that public agencies cannot afford a requester access to a record that it does not have or that does not exist. Our review of the statutes, regulations, and policies governing Corrections and correctional facilities discloses no legal requirement that such notes exist. As in 08-ORD-015 and 11-ORD-014, we affirm the agency's denial of Mr. Pasha's request in light of its explanation for the nonexistence of the records sought and the absence of any facts or law importing the records' existence. Compare 11-ORD-036.
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.