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 denying Uriah Pasha's July 24, 2012, request for a "copy of all complaints Dr. Julie R. Barber, Psychologist received concerning Uriah Pasha # 092028 while in the C.H.A.N.G.E.S. from Ms. Melissa Gaydos, SSC, before Ms. Baydoes [sic] was terminated from her employment for promoting Dangerous Contraband into the institution." In responding to Mr. Pasha's August 6 appeal challenging the alleged failure of KSR to respond in a timely manner, the agency explained that Mr. Pasha was not incarcerated at KSR and thus had to mail his request; accordingly, his request, while dated July 24, was not actually received until August 1. 1 KSR Offender Information Specialist Marc Abelove responded on August 6, within five business days of receipt per KRS 197.025(7), advising that "Dr. Julie Barber stated that she reviewed her files and did not locate any complaints from Ms. Melissa Gaydos, SSC to her (Barber) in regards to Uriah Pasha 092028 while he (Pasha) was in the C.H.A.[N.]G.E.S. Program while housed at [KSR]." KSR included a copy of his August 6 response with its August 10 response to Mr. Pasha's appeal. The agency reiterated that Dr. Barber conducted a "search for the requested records in her files and did not locate any responsive record. To the best of her knowledge the records do not exist." Citing prior decisions of this office, KSR correctly argued that a public agency cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute an unsupported claim that certain records exist.
As in 11-ORD-118, 11-ORD-214, and 12-ORD-025 (issued July 27, 2011, December 16, 2011, and January 30, 2012, 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." 11-ORD-118, pp. 1-2. 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"), 11-ORD-091; 12-ORD-025, 12-ORD-027, 12-ORD-030, 12-ORD-050, 12-ORD-052, and 12-ORD-069, all of which affirmed the denial of requests by Mr. Pasha for nonexistent records. 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").
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. "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. Because KSR 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 responsive complaints were located. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. 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. In the absence of the requisite prima facie showing, or any evidence to confirm that Dr. Barber received complaints from Ms. Gaydos relating to Mr. Pasha while he was participating in the CHANGES program, this office affirms the agency's denial of Mr. Pasha's request per Bowling , prior decisions including 11-ORD-122, and those referenced above. Dr. Barber's "good faith should not be impugned unless there is some reason to believe the supposed documents" exist. 95-ORD-96, p. 3; 12-ORD-027. Mr. Pasha offers no such proof.
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 AbeloveAmy V. Barker
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