Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in the disposition of Uriah M. Pasha's February 7, 2013, request for a copy of "the letter from Uriah Pasha # 092028, dated January 22, 2013, to: Warden Don Bottom, RE: KRS 13A.120." Having purportedly received no response to his request, Mr. Pasha initiated this appeal by letter dated February 21, 2013. Upon receiving notification thereof, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. Ms. Barker initially advised that NTC staff reviewed the copy of the request attached to Mr. Pasha's appeal upon receipt and conducted a search of the Open Records Request Log maintained at NTC. The agency "date stamps and logs requests as they are received[,]" Ms. Barker explained, and the subject request was not found in the log, "so it appears that NTC did not receive the request." 1 However, NTC staff reviewed Mr. Pasha's KOMS (Kentucky Offender Management System) file and did not locate a letter matching the description provided. If such a letter was received and retained, Ms. Barker continued, "it would normally be saved in the KOMS file." A search was also conducted in the Warden's Office but no such letter was located. Rather, the Warden "had no recollection of ever seeing such a letter." Citing prior decisions of this office, NTC 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 a certain record(s) exists.
Regarding the letter in dispute, in the March 5 response directed to Mr. Pasha NTC specifically advised that "an in-depth examination of your institutional file, located within [KOMS], failed to produce the document you seek. The [W]arden's office searched for the letter and was unable to locate a copy of the letter you describe and the [W]arden had no recollection of receiving such a letter." In the absence of a prima facie showing to the contrary, or any evidence to refute the position of NTC, 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, 12-ORD-161, and 13-ORD-018, 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 , 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 NTC 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 letter was 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 [NTC] possesses [the] record[] [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 M. Pasha, # 092028Kelly TyreeAmy V. Barker
Footnotes
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