Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in the disposition of Uriah M. Pasha's December 2, 2011, request for a "copy of KSR Dorm 6 Log that [r]ecorded Uriah Pasha # 092028's check-in to the dorm officer every hour pursuant to the January 10, 2011 KSR Disciplinary Segregation Contract Addendum during the week of January 24-28, 2011, and the reason why he no longer had to report(s) [sic] January 28, 2011." KSR Offender Information Specialist Marc Abelove denied Mr. Pasha's request, advising that he was "not required to create a document(s) and/or record(s) which do not already exist" according to prior decisions by the Attorney General, such as OAG 82-234. Mr. Abelove explained that he reviewed the Dorm 6 Security Log for the "period in question (January 24-28, 2011 from the 8-4 shift and 4-12 shift)" with Sr. Captain Whitfield and it contained no "written documentation" that Mr. Pasha "reported." Mr. Abelove further advised that he spoke with "CTO Jim Ford (the staff member that instructed both you and security staff [)]" with regard to "reporting instructions" but he did "not recall if security staff were instructed to log in." Finally, Mr. Abelove spoke with Administrative Section Supervisor Alicia Bloyd, who was not aware of any requirement that Mr. Pasha's "reporting is to be logged in." Because the Log "did not address any reasons for you not to report," Mr. Abelove noted, it was "not responsive to your request." Mr. Pasha initiated this appeal shortly thereafter, noting that "CTO Jim Ford did not instruct me in regards to reporting in every hour[,]" I "received a CPTU Contract Addendum that instructed me; and CUA-II Barbara Hazelwood (now retired) instructed both Dorm Staff and myself." Based upon the following, this office affirms the agency's disposition of Mr. Pasha's December 2 request.
Upon receiving notification of Mr. Pasha's appeal from this office, Staff Attorney Alea Amber Arnett, Justice and Public Safety Cabinet, responded on behalf of KSR, summarizing the agency's initial response and correctly observing that public agencies "cannot provide access to records that do not exist" and generally "discharge their duty under the Open Records Act" by notifying the requester that responsive records do not exist. Ms. Arnett cited a line of prior decisions in support of this position, but acknowledged that the Attorney General "has also required that agencies provide an explanation of the nonexistence and made 'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]' 11-ORD-170, p. 4[.]" The search conducted here was reasonable, Ms. Arnett argued, for the following reasons:
(1) [T]he security log provides a synopsis of what happened from a security perspective in each dorm during each shift. This would include the counting of the inmates, the results of searches by security staff and the areas searched, and other security matters such as an inmate checking in if security staff was instructed to record that; (2) Classification and Treatment Officer Jim Ford was the one who instructed both Mr. Pasha and security staff about check-in requirements and he did not recall giving instructions to log Mr. Pasha's hourly reports; and (3) Alicia Bloyd was formerly a Corrections Unit Administrator before promoting to Administrative Section Supervisor, and is knowledgeable about what is recorded in security logs. Ms. Bloyd did not know of any blanket requirement that inmate check-ins are to be logged.
Based upon the foregoing, Ms. Arnett concluded, "Mr. Abelove made a good faith effort to conduct a search that could reasonably be expected to produce the requested record. " However, the search revealed that a record fitting Mr. Pasha's description does not exist "probably because it was never created." 1
Because KSR advised Mr. Pasha in a written response that no responsive log 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 created a log matching the description provided. 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. See 11-ORD-122.
As in 11-ORD-118 and 11-ORD-214 (issued July 27, 2011, and December 16, 2011, respectively), this office declines to unnecessarily lengthen the instant decision with yet another summary of the relevant legal authorities given 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"). See 11-ORD-037 (affirming the denial by KSR of a request by Mr. Pasha "in light of its explanation for the nonexistence of the records sought and the absence of any facts or law importing the records' existence"). The analysis contained in 11-ORD-122 (In re: Uriah M. Pasha/Kentucky State Reformatory, issued August 8, 2011), a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. See also 12-ORD-019.
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. In the absence of the requisite prima facie showing, or any evidence to suggest that KSR ever created the records at issue, this office affirms the agency's denial of Mr. Pasha's request per Bowling , above, and prior decisions, including 11-ORD-122, and those referenced above.
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. Pasha, # 092028Marc AbeloveAmber Alea Arnett
Footnotes
Footnotes