Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Kentucky State Reformatory did not violate KRS 61.870 to 61.884 in partially denying Uriah Pasha's request to inspect "all correspondence to Amy Haskins-Consley, Admin. Specialist II from Uriah Pasha . . . and her response thereto." KSR provided Mr. Pasha with a copy of the single responsive record, an "inmate's response" to a disciplinary report prepared by Mr. Pasha and transmitted to Ms. Haskins-Consley, confirmed that Ms. Haskins-Consley never replied, and advised him accordingly in a timely written response. Non-open records issues tangentially related to this dispute, however important those issues are to Mr. Pasha, cannot be resolved in an open records appeal. 09-ORD-006 ("Issues unrelated to the Open Records Act are beyond the Attorney General's review powers under KRS 61.880").
Mr. Pasha is no doubt familiar with the line of open records decisions issued by the Attorney General recognizing that, in general, public agencies that deny access to requested records based on the nonexistence of the records cannot be held to have violated the Open Records Act. See, e.g., 11-ORD-091 and authorities cited therein; compare, 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"). As recently as January of 2011, this office affirmed Kentucky State Penitentiary's denial of Mr. Pasha's request for nonexistent records. In the appeal before us, Mr. Pasha acknowledges that Ms. Haskins-Consley "failed to respond" to his correspondence and that no responsive records exist, but focuses on non-open records issues relating to the passage of HB 463 in 2011, his repeated inquiries to Ms. Haskins-Consley relating to implementation of HB 463, and the resulting disciplinary report against him for his persistent inquiries.
Here, as in the referenced open records decisions, we assign no error to Kentucky State Reformatory for the partial denial of Mr. Pasha's request. KSR confirmed that Ms. Haskins-Consley "did not respond to [Mr. Pasha's] requests," and properly advised him that it could not produce for inspection and copying nonexistent records. Given Mr. Pasha's stipulation that no records exist, KSR was required to do no more.
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.
Distributed to:
Uriah Pasha, # 092028Marc AbeloveAmy V. Barker