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 partially denying Uriah Pasha's December 27, 2011, request for a "copy of the October 2011 e-mails from KSR to CUA Mike Sparks, CUA Carla Sparks and CUA Donald McKenzie in regards to [his] disciplinary segregation time." In a timely written response, Offender Information Specialist Sonya Wright advised Mr. Pasha that she was enclosing a copy of "the only emails existing in response to your request." According to Ms. Wright, said e-mails, which are "to/from CUA Carla Sparks and CUA Donald McKenzie," were created in November 2011 rather than October 2011. Ms. Wright further explained to Mr. Pasha that EKCC does not possess a record "responsive to your request for an email from/to CUA Mike Sparks." Citing prior decisions by this office, Ms. Wright correctly observed that a public agency cannot produce that which it does not have. Mr. Pasha initiated this appeal shortly thereafter, asserting that during his reclassification hearing CUA Carla Sparks informed him that Alicia Boyd "e-mailed her concerning my segregation time and caused it to be enhanced from 10/31/2011 to 12/24/2015." In his view, the "Master Sheet" attached to his appeal, which reflects an "outdate" of December 24, 2015, indicates that "Ms. Sparks received the information after [his] arrival and prior to 10/31/2011." This office affirms the final disposition of Mr. Pasha's request for the reasons outlined in the agency's response to his appeal.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of EKCC. Ms. Keeton confirmed that the e-mails provided "were sent/received by James Coyne and Alicia Boyd of Kentucky State Reformatory (KSR)," and "CUA Carla Sparks and CUA Donald McKenzie of EKCC in November 2011." 1 Upon further inquiry, Ms. Keeton advised, EKCC learned that CUA Mike Sparks "deletes emails on a regular basis; therefore he had no emails pertaining to Inmate Pasha's disciplinary segregation time when this request was submitted." Citing a line of prior decisions by this office, Ms. Keeton further reiterated that "agencies cannot provide access to records that do not exist and that agencies discharge their duty under the Open Records Act by so stating." However, in addition public agencies must explain the nonexistence of the records being sought, Ms. Keeton correctly noted, "and make 'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]' 11-ORD-170 at 4; 00-ORD-120; 04-ORD-75; 05-ORD-109 at 3; 11-ORD-003."
Ms. Keeton explained that Ms. Wright's search "involved those individuals named in Inmate Pasha's December 27, 2011, open records request." The search was reasonable, EKCC continued, "because it involved members of the EKCC staff who would have created the record as well as the staff who would have sent or received the requested e-mails. " During the search, Ms. Wright discovered "that CUA Mike Sparks deletes emails on a regular basis as a personal clean up practice; therefore he had no emails corresponding to Mr. Pasha's request." 2 In sum, EKCC asserted that Ms. Wright conducted a search that could reasonably be expected to produce the records in dispute, and that search revealed "that EKCC either no longer has the requested records or they never existed at all." Because EKCC advised Mr. Pasha in a written response that no additional responsive e-mails currently exist 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 EKCC violated the Open Records Act in the absence of any irrefutable proof that such e-mails were created or still exist. 05-ORD-109, p. 3. EKCC cannot produce that which it does not have nor is EKCC required to "prove a negative" under existing law.
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-122 (In re: Uriah Pasha/Kentucky State Reformatory) 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. 3 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." 4 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. EKCC ultimately explained the steps taken to locate potentially responsive e-mails and the reason why no additional responsive e-mails currently exist. Mr. Pasha has not offered any objective proof that conclusively refutes the position of EKCC. 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, in affirmatively indicating that no additional 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 additional responsive e-mails currently 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.
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, # 092098Sonja WrightLinda M. Keeton
Footnotes
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