11-ORD-213
December 16, 2011
In re: Uriah Pasha/Eastern Kentucky Correctional Complex
Summary: Eastern Kentucky Correctional Complex has provided a credible explanation for the nonexistence of the only record in dispute and is not required to “prove a negative” in order to refute appellant’s claim that such a record exists in the absence of any facts or law from which its existence can be presumed. 11-ORD-209 is controlling on the question of the record’s existence.
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Uriah Pasha’s November 3, 2011, request for a “copy from KOMS showing what date and who authorized Uriah Pasha #092028 segregation time to be shelf [sic] and what date and who authorized it to be revoked; and a copy of the authorized transfer form to have Uriah Pasha #092028 transfer[red] to EKCC 10/25/2011, and to KSR 7/15/2010.”1 Mr. Pasha initiated this appeal by letter dated November 10, 2011, disputing that his request was “Granted,” notwithstanding the notation to that effect on the Disposition section of the attached request form, as he did not receive “a copy from KOMS showing what date and who authorized [his] segregation time to be revoked.” Based upon the following, this office concludes that 11-ORD-209 (In re: Uriah Pasha/Eastern Kentucky Correctional Complex) is controlling on the facts presented.
In responding to Mr. Pasha’s appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, advised that EKCC provided Mr. Pasha with a copy “of his CPTU Disciplinary Segregation/Behavioral Contract from KOMS” based on the belief that “he was seeking the document that showed why his segregation time was not reduced based on his language about time on the ‘shelf’ and segregation time being revoked. EKCC does not make segregation time entries into the offender management system as [Mr.] Pasha seems to believe.” Ms. Barker further explained that an electronic record does not exist in KOMS “which shows the date and person who authorized segregation time to be revoked.” Moreover, Mr. Pasha’s segregation time was not “revoked,” she continued, “so no document exists in KOMS that was responsive to this aspect of his request if he was not seeking his CPTU Disciplinary Segregation/Behavioral Contract from KOMS.” In closing, Ms. Barker correctly observed that a public agency cannot provide a requester with access to a nonexistent record, citing prior decisions by this office in support of the agency’s position that a public agency discharges its duty under the Open Records Act in advising the requester that no such record exists.
This office conclusively resolved the only question presented here in 11-ORD-209, above. Because the record on appeal was unclear as to whether EKCC had provided Mr. Pasha with “a copy of the results of [his] disciplinary contract revotion [sic],” the only record not addressed in the agency’s response to his nearly identical October 27 request, Ms. Barker offered the following clarification:
As explained in related Log #20100413 [the instant appeal], the contract [provided] set the terms of how the segregation time would be reduced. No separate revocation document would have been created where there was nothing to revoke. Further, no document was needed since the contract clearly stated that if its terms were met, then the segregation time would be reduced by a specific formula. Since the terms of the contract were not met, no reduction in time ever occurred and no reduction needed to be revoked.
. . . If Inmate Pasha was not seeking this contract in response to his request, then Central Office does not have a copy of a separate document that indicates segregation time was revoked. Normally Central Office would refer Inmate Pasha to staff at KSR [Kentucky State Reformatory] and EKCC for any record that may exist, but counsel has learned in work[ing] on the response to [the instant appeal] that no revocation document was created, so Central Office supplements its response to state that no segregation time revocation document exists.
In light of the foregoing, the instant appeal presents no basis to depart from the reasoning found in 11-ORD-209 (pp. 3-6 in particular), a copy of which is attached hereto and incorporated by reference. As EKCC correctly observed in response to Mr. Pasha’s appeal, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. 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. However, 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 record(s) in dispute 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); 11-ORD-209. This EKCC has done.
In a series of decisions issued since Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), this office has affirmed 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; 11-ORD-209. As in 11-ORD-209, Mr. Pasha “has not attempted to make such a showing here, nor could he given that no responsive document was ever created.” Id., p. 5. In the absence of the requisite prima facie showing, or any evidence to suggest that EKCC ever created the record at issue, this office affirms the agency’s denial of his request per Bowling, above, and prior decisions, most notably 11-ORD-209.
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.
Jack Conway
Attorney General
Michelle D. Harrison
Assistant Attorney General
#413
Distributed to:
Uriah Pasha, #092028
Sonya Wright
Amy V. Barker
[1] Mr. Pasha submitted a similar written request on October 27, 2011, seeking a “copy of the authorized transfer orders to transfer Uriah Pasha[,] #092028[,] from KRS to EKCC 10/25/2011, and from LLCC to KSR 7/15/2010; and a copy of the results of Uriah Pasha[‘s] . . . disciplinary contract revotion [sic]; a copy of the document that dates [sic] what date Uriah Pasha[‘s] disciplinary segregation time was placed on the shelf at KSR between 7/15/2010 thur [sic] 10/26/2011; [and] a copy of the document used to recalculate Uriah Pasha[‘s] . . . segregation time October 2011.” EKCC denied receiving the request; however, in responding to his appeal challenging its alleged failure to respond, EKCC advised that he submitted a nearly identical request on November 3, and that request is the one currently at issue.