11-ORD-214
December 16, 2011
In re: Uriah Pasha/Justice and Public Safety Cabinet
Summary: Justice and Public Safety Cabinet did not violate the Open Records Act in requiring inmate requester to comply with CPP 6.1 prior to releasing the only existing record which is responsive to his request nor was the agency required to produce a nonexistent record. Having advised requester of the reason that no such record was ever created, the agency discharged its duty.
Open Records Decision
The question presented in this appeal is whether the Justice and Public Safety Cabinet, Office of the Secretary, violated the Kentucky Open Records Act in the disposition of Uriah Pasha’s November 7, 2011, request for a copy of his “letter to J. Michael Brown, Secretary, dated Nov. 4, 2011, and Mr. Brown’s response thereto.” In responding to Mr. Pasha’s appeal challenging the agency’s purported failure to respond, Assistant General Counsel Amy V. Barker advised that his request was actually received on November 14,1 and the Cabinet’s November 17 response was timely within the meaning of KRS 61.880(1). In that response, Ms. Barker notified Mr. Pasha that the Cabinet “maintains a copy of the letter you sent Secretary J. Michael Brown dated November 4, 2011. The [O]ffice does not have a copy of a response from the Secretary to you because your letter was forwarded to the Department of Corrections for any necessary response. No response from the Secretary was created.”2 In closing, Ms. Barker explained that the “cost for the two copies and postage is 64 cents.” Because the Cabinet did “not have a mechanism to return the excess paid” to Mr. Pasha, the agency returned his check for $1.00 to Eastern Kentucky Correctional Complex, where he is currently incarcerated, “for the business office to void and return the funds” to his account. Mr. Pasha was further instructed to “follow the normal process at EKCC to provide a completed money authorization form to Sharon Rose, the Offender Information Supervisor to obtain the copy of your letter.”3 Because the Cabinet has agreed to provide Mr. Pasha with a copy of the only existing responsive letter upon receipt of the correct payment and necessary authorization form, and is not required to provide a nonexistent record for inspection or copying, this office finds no error in the agency’s disposition of his request.
As in 11-ORD-118, this office notes that 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.” Id., pp. 1-2. 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 earlier this month, the Attorney General affirmed the denials by Eastern Kentucky Correctional Complex of Mr. Pasha’s requests for a nonexistent record(s). See 11-ORD-122; 11-ORD-209. This office will not unnecessarily lengthen the instant decision with another summary of the authorities upon which the foregoing decisions were premised. Here, as in the referenced decisions, the Attorney General has no basis upon which to find that the agency violated the Open Records Act in the disposition of Mr. Pasha’s request for a nonexistent record(s). The Cabinet’s disposition of Mr. Pasha’s request is therefore affirmed in accordance with the reasoning contained therein.
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
#417
Distributed to:
Uriah Pasha, #092028
Amy V. Barker
[1] The request was postmarked November 12.
[2] Ms. Barker also provided Mr. Pasha with contact information for the DOC records custodian per KRS 61.872(4) so that he could request any existing response to his letter from that agency.
[3] This office has previously upheld the validity of DOC Policies and Procedures 6.1, and 6.1(B)(4), the provision implicated here, specifically, as recently as March 2011 in a decision resolving a prior appeal by Mr. Pasha, 11-ORD-047, a copy of which is attached hereto and incorporated by reference. See 08-ORD-044; 08-ORD-242. On appeal Ms. Barker advised that the Cabinet “requires advance payment for copies of records” per KRS 61.874(1) and Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985). As of November 29, the date of her written response, Ms. Barker had spoken with EKCC staff “and no money authorization for the record has been received.” Inasmuch as the challenged policy “does not interfere, or threaten to interfere, with [Mr. Pasha’s] statutory right of access to nonexempt public records,” and is consistent with provisions of the Open Records Act, this office finds that the Cabinet did not violate the Act by requiring compliance with it and trusts that any remaining issues will be resolved when DOC provides Mr. Pasha with the requested copy, if any such response was generated, upon receipt of the necessary documentation. 08-ORD-044, pp. 4-5; 11-ORD-047, p. 4.