Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
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 17, 2011, request to inspect a record he identified as "KSR-CUA-II Barbara Hazelwood's Email/Memorandum dated January 26, 27, 28, 2011, that released Uriah Pasha # 092028 from the KSR Disciplinary Segregation Contract Addendum that required him to check-in to the dorm officer every hour (addressed to KSR Captain's Office)." In a timely written response, EKCC advised Mr. Pasha that "no public record maintained" by EKCC was responsive to his request. Offender Information Specialist Sonya Wright correctly observed that a public agency cannot provide that which it does not have and notified Mr. Pasha to submit his request to Kentucky State Reformatory "as they may hold possession of the documents you are requesting." Based upon the following, this office finds no error in the agency's disposition of Mr. Pasha's request with the exception of a procedural deficiency.
In response to Mr. Pasha's appeal, legal counsel for EKCC explained that "[u]pon consultation with Ms. Wright, she reported that she knew that EKCC did not have an employee by the name of Barbara Hazelwood and that she would therefore not have access to any potentially responsive document unless it was scanned into the Kentucky Offender Management System ("KOMS")." When her search of KOMS revealed no responsive documents, counsel advised, Ms. Wright referred Mr. Pasha to KSR "since Ms. Hazelwood was formerly employed there." Citing KRS 61.872(4) and 03-ORD-171, counsel asserted that if a public agency "does not have custody or control of a public record but informs the requester of where he or she may obtain it, the agency has discharged its duties under the Open Records Act. " EKCC is largely correct in this assertion.
With regard to statutory obligations of a public agency upon receipt of request for a nonexistent records, or those which it does not possess in general, the analysis contained in 11-ORD-209 (In re: Uriah Pasha/Eastern Kentucky Correctional Complex) is controlling; a copy of that decision is attached hereto and incorporated by reference. As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 1 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection attaches only if the record(s) being sought is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. 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 record(s) exists (or is in the possession of the agency) as EKCC asserted in a timely manner here. It is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 2 01-ORD-136, p. 2. As previously indicated, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records.
That being said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." 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 records at a minimum. See 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); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). For example, the agency "must identify steps taken to locate missing records or explain under what authority the records were destroyed." 08-ORD-015, p. 4. This EKCC ultimately did here. When, as in this case, a public agency denies that certain records exist, and the record on appeal does not refute that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because EKCC 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, by affirmatively indicating that no records were located. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. Compare 11-ORD-074 (holding that "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" and the agency failed to rebut the presumption). To hold otherwise would result in EKCC "essentially hav[ing] to prove a negative" to refute a claim that such records exist in the possession of the agency. 07-ORD-190, p. 7, quoting Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). See also 11-ORD-024. However, the analysis does not end there.
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records ." (Emphasis added.) EKCC promptly advised Mr. Pasha that it does not possess or maintain the records being sought, and notified him that any such records would be at KSR, in substantial compliance with KRS 61.872(4) ; however, the agency did not provide Mr. Pasha with contact information for the records custodian for KSR, albeit possibly because it reasonably assumed that Mr. Pasha possessed that information by virtue of the requests that he submitted while incarcerated there. To this limited extent, the agency's response was deficient. See 09-ORD-029.
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, # 092028Sonya WrightAmber Arnett
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