Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green River Correctional Complex violated the Kentucky Open Records Act in denying Uriah Pasha's November 26, 2012, request for a copy of his "appeals to the Warden from the following Disciplinary Reports: 1) Category 4.1 Final Dec. 31, 2003; 2) Category 3.4 Final Dec. 31, 2003; 3) Category 4.12 Final Jan. 12, 2004; 4) Category 3.2 Final Jan. 12, 2004." GRCC Offender Information Specialist Teresa Shanklin initially advised Mr. Pasha that "older disciplinary reports are not scanned in with the appeals" 1 but she would continue searching and send a final response no later than December 18, 2012. "After several days of searching, " Ms. Shanklin determined that "no appeal was filed on any of these disciplinary reports or at least not in the timely manner required by the policy." 2 She included with her final response a copy of a November 21, 2012, memorandum to Mr. Pasha from Warden Alan D. Brown in support of this conclusion. Relying upon prior decisions of this office, GRCC correctly advised that a public agency cannot produce nonexistent records for inspection or copying. Mr. Pasha subsequently initiated this appeal, noting that "Part II -- Hearing/Appeal of Disciplinary Report Category 4.1 Warden's Review dated December 31, 2003 clearly states he reviewed the Appeal he received." 3 He further observed that the "other three Warden's Review claim [sic] no appeal was received. But they were signed by someone other than the Warden."
Upon receiving notification of Mr. Pasha's appeal from this office, Staff Attorney Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of GRCC. Ms. Keeton reiterated that a "thorough search of [Mr.] Pasha's extensive disciplinary record revealed no copies of the requested appeals" but "an inmate's appeal of an adjustment decision was not always entered into the computer database along with the official report." Accordingly, GRCC determined that Mr. Pasha had "either not filed an appeal of those particular disciplinary decisions, or, any appeal that may have been filed was submitted in an untimely fashion. In either case, the agency does not have copies of the documents requested." Contrary to Mr. Pasha's assertion, GRCC further explained, "the Warden may designate another to review and sign adjustment decisions, according to CPP 15.6, II, F, the Warden or his designee has the authority to review an adjustment decision." Because GRCC "does not have the requested records," and ultimately notified him of that fact in writing after conducting a thorough search of his disciplinary record, the agency maintained that its denial was correct. In the absence of a prima facie showing to the contrary, or any evidence to refute the position of GRCC, the Attorney General affirms the agency's ultimate disposition of his request consistent with
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) and prior decisions of this office.
As in 11-ORD-118, 11-ORD-214, 12-ORD-025, and 12-ORD-161, for example, 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 Kentucky State Reformatory 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 , above , 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 GRCC 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 documents 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. Mr. Pasha "has produced no affirmative evidence, beyond mere assertions, that [GRCC] possesses such records as [he] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. In the absence of the requisite prima facie showing, or any facts or evidence to support Mr. Pasha's claim, this office affirms the agency's denial of his request per Bowling , prior decisions including 11-ORD-122, and those referenced above. The agency'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.
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, # 092028Teresa ShanklinLinda M. Keeton
Footnotes
Footnotes
1 On appeal GRCC explained that "scanned in" refers to "the process of adding documents to an inmate's electronic record in [the Kentucky Offender Management System)."
2 Ms. Shanklin apologized for the delay in sending her initial response on December 12, 2012. Inasmuch as GRCC received Mr. Pasha's request on November 28, 2012, the agency violated the Act from a procedural standpoint by failing to respond within five business days of receipt per KRS 197.025(7). GRCC also failed to cite KRS 61.872(5), upon which it presumably relied in delaying access (or determining that no responsive records existed), though it specified the date on which a final response would be provided.
3 GRCC did not receive a copy of the record to which Mr. Pasha referred nor did this office.