Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in the disposition of Uriah M. Pasha's June 27, 2011, request for a "copy of the Inmate Grievance Uriah Pasha # 92028 submitted June 9, 2011 and the Informal Resolution." On July 7, 2011, within five business days of receiving his request on June 29, 2011, per KRS 197.025(7), KSR Offender Information Specialist Marc Abelove quoted KRS 61.872(5), advising that "Mr. Glen Dotson, who is the institutional grievance person, is currently out of the institution. D/W Ms. Ravonne Simms is covering in his absence and is attempting to locate this information. Our next correspondence will be on July 14, 2011." 1 Because Mr. Pasha had apparently not received this initial response from KSR, which Mr. Abelove mistakenly dated July 11, 2011 (as KSR later acknowledged), he initiated this appeal by letter dated July 12, 2011. KSR subsequently issued a supplemental response dated July 14, 2011, citing OAG 82-234 in support of the assertion that he did not have to create a document, and explaining that "DW Ravonne Sims and Adm. Spec[ialist] Bob Atkin reviewed the Inmate grievance files/logs and could not locate any grievance that you stated you submitted on or about June 9, 2011." In the absence of a prima facie showing that such a grievance was actually filed on or around June 9, or any evidence to refute KSR's position that no grievance was actually received, as further articulated on appeal, the Attorney General affirms the disposition of Mr. Pasha's request consistent with
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) and prior decisions by this office.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, reiterated that KSR's "record did not show the requested grievance was received by the institution." Citing prior decisions by this office holding that a "public agency cannot afford a requester access to a record that it does not have or which does not exist," KSR asked this office to affirm the denial of Mr. Pasha's request by KSR. Having received KSR's July 14 supplemental response after initiating this appeal, Mr. Pasha issued a reply on July 15, attaching "a copy of the original [grievance] filed June 9, 2011." Mr. Pasha asserted that Officer Woods "refused to sign the copy form so I re-typed [sic] it and signed it to ensure that I had a copy." Mr. Dotson, according to Mr. Pasha, "has been circumventing the inmate grievance process for years." Mr. Pasha noted that he filed a grievance on February 14, 2011, but Mr. Dotson "has caused it to be delayed a number of times and refuses to allow me the right to forward it to the next level pursuant to Policy CPP 14.6." The grievance exists, Mr. Pasha continued, "and when Mr. Dotson returns he will verify everything stated above." 2
Because Mr. Pasha neglected to send a copy of his July 15 letter to KSR, this office did so in order to provide the agency with an opportunity to respond. Having reviewed the allegations contained in his letter, KSR correctly observed that "for purposes of the open records appeal, the only pertinent issue is his allegation that he filed the grievance and then retyped it and signed it again after giving the original grievance form to the grievance office." KSR explained that Officer Wood "had no specific recollection of Mr. Pasha on June 9." However, KSR "logs all grievances that are received. KSR again checked both the rejected grievance log and the approved grievance log. The logs contained no entry for a grievance being filed by Mr. Pasha on June 9. . . . KSR cannot provide a copy of a document that it does not have. 3"
Because KSR ultimately indicated to Mr. Pasha in a written response that no responsive grievance exists in the custody or possession of the agency, following a "search using methods which [could] reasonably be expected to produce the record[s] requested," this office has no basis upon which to find that KSR violated the Open Records Act in the absence of any irrefutable proof that KSR actually received the grievance purportedly filed on June 9. 05-ORD-109, p. 3. KSR cannot produce that which it does not have nor is KSR required to "prove a negative" under existing law.
As KSR correctly observed in response to Mr. Pasha's appeal, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right of inspection 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. Thus, 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 in affirmatively indicating that no such records exist as KSR has twice asserted in this case. On many 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, 4 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 currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame). When, as in this case, a public agency denies that any such record(s) exists, and the record supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to Mr. Pasha's original request KSR did not explain the nonexistence of the grievance or sufficiently outline the steps taken to locate the requested grievance as required to satisfy its burden of proof under KRS 61.880(2)(c); however, Ms. Barker ultimately confirmed on appeal that no records exist matching the description provided after consulting with KSR staff, attaching a memorandum outlining the steps taken and confirming that a grievance was filed on June 9, by someone other than Mr. Pasha. Ms. Barker also enclosed a copy of the "Scanned Documents/Photos" Log as further verification of the agency's position. KSR now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Pasha's claim that such a record(s) exists.
The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling, above, at 341. Addressing this dilemma, in Bowling the 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." 5 Id. 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 records in the absence of a prima facie showing that records 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. Mr. Pasha has not made such a showing here, relying exclusively on a typed copy of the grievance requested, the existence of which does not establish that the original grievance was actually filed on June 9 and received at KSR.
Because Mr. Pasha "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. See 11-ORD-037 (denial of Mr. Pasha's request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); see also 11-ORD-118. 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"); 11-ORD-036.
The analysis contained in 10-ORD-050 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. Because KSR appears to have made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no such record(s) was located. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. To hold otherwise would result in KSR "essentially hav[ing] to prove a negative" in order to refute Mr. Pasha's unsubstantiated claim that such a record(s) exists. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, or any evidence to confirm that such a record was actually received at KSR, the agency's denial of Mr. Pasha's request is affirmed in accordance with Bowling, above, and prior decisions of this office such as 10-ORD-050.
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 M. PashaMarc AbeloveAmy V. Barker
Footnotes
Footnotes
1 This office reminds KSR that neither the "press of business nor the absence of the official custodian justifies a delay in providing access to public records. " 02-ORD-165, p. 3; 05-ORD-064. Rather, "[i]t is incumbent on [KSR], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6; 05-ORD-034. In short, Mr. Dotson's absence did not justify the agency's reliance on KRS 61.872(5) or constitute a "detailed explanation" of the cause for delay.
2 In closing, Mr. Pasha referred to a "disciplinary report" purportedly attached to his "original complaint" which allegedly demonstrates that he "was disciplined for attempting to bring this matter before the courts of this Commonwealth." No such report was enclosed with either his appeal or his related correspondence. In any event, Mr. Pasha's claim that he is "being deprived Access to the Court in violation of section one [sic] to the Kentucky Constitution" is not justiciable in this forum.
3 Attached to Ms. Barker's August 1 letter was a copy of a July 29, 2011, memorandum directed to Mr. Abelove by Deputy Warden Ravonne Sims, advising him as follows:
Correctional Officer Woods does not sign copy requests if the grievance has not completed the process. On July 29, 2011, she stated she does not recall if she encountered Pasha on June 9, 2011, but if she did she stated she would have denied a copy request.
CPP 14.6 does NOT state grievant gets a copy at every level of the process. CPP 14.6 states grievant shall be provided with 1 copy of his grievant form. This copy is not provided at the time of initial complaint.
All grievances are logged and assigned a number. If rejected, added to the rejected log, if approved, added to the approved log.
Correctional Officer Woods on July 29, 2011, checked the rejected log again and there is no record of Pasha filing a grievance on June 9, 2011. I, Deputy Warden Sims, checked the approved grievance log on July 29, 2011. Only 1 inmate - not Pasha - filed a grievance on June 9, 2011.
Grievance 11-0122 has not been delayed by Mr. Dotson refusing to allow it to be moved to the next level. This grievance has been reinvestigated a number of times to assure proper review.
4 See KRS 61.8715.
5 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."