Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that, absent proof of delivery of Uriah Pasha's December 15, 2011, request to the appropriate Kentucky State Reformatory's office or employee, Kentucky State Reformatory did not violate the Open Records Act in failing to respond to Pasha's December 15, 2011, request for "documentation that Lt. Arnold B. Chisholm used to record the "Reprimand and Warning he gave Uriah Pasha to stay away from Officer Phoebe Powell and to be in uniform in the school at the being [sic] of the summer of 2011." Further we find that, absent proof beyond a bare claim that records responsive to this request exist, and that KSR's search for those records was inadequate, KSR did not violate the Act in denying Pasha's request in its response to his appeal.
In his letter of appeal, Pasha laments "over a dozen open records appeals since September 1, 2011," in which KSR and Eastern Kentucky Correctional Complex have asserted the nonexistence of responsive records, questioning the adequacy of their searches as well as their veracity. It is his belief that KSR is concealing the document "so [he] cannot submit it to the Oldham County Circuit Court in Civil Action No. # 11-CI-01094 -- Pasha v. Crews , et al. " 1 In support, he argues that "[i]f Officer Powell reported the incident to Lt. Chisholm and Lt. Chisholm gave Pasha a reprimand and warning, Lt. Chisholm made some form of note(s), or file(s) to record his actions." If he did not, Pasha concludes, "he needs to be investigated." 2
In correspondence submitted to this office after Pasha filed his appeal, KSR responded through a Department of Corrections' staff attorney who denied both receipt of the request and the existence of any "record as described . . . because Caption Chisholm 3 did not record his counseling session with Pasha." Continuing, KSR observed:
On January 23, 2012, Marc Abelove, Offender Information Specialist at KSR, spoke with Captain Chisholm about this request and learned from Captain Chisholm that no document was created as described by Mr. Pasha. Captain Chisholm only spoke to Mr. Pasha in a counseling session to advise Mr. Pasha that he will have to correct his behavior or his actions will lead to disciplinary action. According to Corrections Policies & Procedures ("CPP") 15.2(G)(1) and 15.6, reprimands and warnings are only issued when a disciplinary report is issued, and that was not the situation, in June 2011. CPP 15.2 and 15.6, available at http://corrections.ky.gov/communityinfo/Policies%20and%20Procedures/Pag….
. . .
Mr. Abelove's search was reasonable because it involved the person who would have created the record, if it had been created. Mr. Abelove's search revealed that Captain Arnold Chisholm did not make a written record of his counseling session with Mr. Pasha where he advised him to correct his behavior with regards to Officer Powell or face disciplinary action. Thus, Mr. Abelove made a good faith effort to conduct a search that could reasonably be expected to produce the requested record. His search revealed that a record fitting this description does not exist because it was never created.
The uncaptioned document attached to Pasha's appeal refers to "this disciplinary report" and is dated September 30, 2011.
We affirm KSR's denial of Pasha's request based on the nonexistence of a responsive record and find insufficient evidence to support his claim of an inadequate search or procedural noncompliance. The disciplinary report that Pasha alleges necessitated the creation of written reprimands and warnings was issued in September. Pasha requested documents from "the being [sic] of the summer 2011." This timeline does not support his position that documentation exists inasmuch as Lt. Chisholm's discussion with him at the beginning of the summer did not, per Corrections policies and procedures, require written documentation. Notwithstanding this fact, KSR questioned Captain Chisholm about the existence of responsive records, thereby conducting a search using methods that could reasonably be expected to produce the requested records per 95-ORD-96, and learned that the Captain counseled Pasha earlier in the year, advising him to correct his behavior toward Officer Powell "or face disciplinary action. " We can only assume that these counseling sessions did not yield the desired result, and in September Pasha received a disciplinary report. For the same reason, KSR's search did not yield responsive records from the beginning of the summer of 2011. Unlike Pasha, we do not assign improper motives to KSR for its unsuccessful search and inability to produce the records he seeks. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. We believe that KSR conducted such a search.
Nor do we assign error to KSR for failing to respond to an open records request where no proof exists that it reached the appropriate office or employee. Here, as in past appeals, we acknowledge our inability "to resolve a factual dispute concerning the actual delivery and receipt of . . . [an] open records request." 02-ORD-226, p. 2. The parties are at loggerheads over this issue. Because the record on appeal is devoid of proof supporting Pasha's claim that he properly transmitted his request to the appropriate office or employee, we cannot determine if KSR violated KRS 61.880(1) by failing to issue a timely written response.
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, # 092028Marc AbeloveAlea Amber Arnett
Footnotes
Footnotes
1 Concealment of public records is a matter that can best be addressed by the courts, and Pasha has sued the Department in circuit court. If he has proof of willful concealment, he can present this proof to the court. No such proof has been presented here. This office cannot "investigate" his unsubstantiated allegations or impose sanctions.
2 Pasha attaches an uncaptioned document on which he has underlined these sentences:
He also states that "I (Lt. Arnold Chisholm) talked with him about this in June." Lt. Arnold Chisholm states that Officer Powell and other female staff members had come to him about Inmate Pasha making them feel uneasy. I talked with Inmate Pasha and Inmate Pasha told me that he would stay away from Miss Powell and from then on be in uniform in the school. This conversation took place at the beginning of the summer of 2011.
These highlighted materials make no reference to written documents. We therefore do not understand how they support his belief that documentation exists.
3 Formerly Lieutenant Chisholm.