Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in denying Uriah M. Pasha's March 28, 2013, request for a copy of the "Personal Property Items Form for Uriah Pasha # 092028 being transferred from Ky. State Penitentiary to Ky. State Reformatory Monday November 11, 2008; and a copy of the Property Form from [Green River Correctional Complex] to KSP February 8, 2013." In a timely written response, Administrative Supervisor Lt. Raymon Vinson advised Mr. Pasha that upon his transfer from KSP his "property file was placed in an inactive file" where it was maintained for two (2) years; after 2 years, the file was destroyed "per policy," and therefore it no longer exists. With regard to his GRCC property form, Lt. Vinson explained that "KSP was not sent a copy and I do not have this form." In accordance with KRS 61.872(4), 1 he advised Mr. Pasha to direct his request for this form to GRCC and provided the address. KSP correctly noted that a public agency cannot provide a requester with nonexistent records or those which it does not possess.
By letter dated April 4, 2013, Mr. Pasha initiated this appeal, focusing on the February 8, 2013, property form. Specifically, he asserted that Lt. Vinson "lost, damaged, and destroyed" his personal property and his brother, Officer Harry Chris Vinson, had a copy of the February 8, 2013, property form when he conducted another inventory of the property on March 10, 2013. Because Mr. Pasha "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP, initially observing that Mr. Pasha only raised an issue regarding the GRCC property form. 2 She advised that when a property form is received at KSP from another correctional facility, the form is placed in a "property form file specific to the inmate. A search was made of that file for Inmate Pasha for the GRCC form and no form was located." Ms. Barker explained that KSP does not always receive such a form "and does not believe that it received a form in this instance." After KSP received the appeal, Ms. Barker continued, "Lt. Raymon Vinson spoke with Officer Chris Vinson and learned that the form he had at the reinventory was the KSP inventory from when Inmate Pasha was initially received at KSP for his most recent incarceration." Officer Vinson did not have a copy of the GRCC form when he conducted the reinventory. Thus, KSP correctly advised Mr. Pasha to direct his request for the form to GRCC after it was not located at KSP. Ms. Barker reiterated on behalf of KSP that a public agency "cannot afford a requester access to records that it does not have," citing 99-ORD-98 and 09-ORD-129. Relying upon 99-ORD-150, 04-ORD-043, and 09-ORD-088, she further argued that a public agency discharges its duty under the Act in affirmatively so indicating. The agency is not required to "prove a negative," Ms. Barker concluded, and KSP correctly directed Mr. Pasha to GRCC for the form at issue per KRS 61.872(4).
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 Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 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 KSP 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 record(s) was located and explaining why. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. The analysis contained in 11-ORD-209 (In re: Uriah M. Pasha/Eastern Kentucky Correctional Complex, issued December 7, 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 [KSP] 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 must affirm the agency's denial of his request per Bowling , prior decisions including 11-ORD-209, and those referenced above.
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, # 092028Lt. Raymon VinsonAmy V. Barker
Footnotes
Footnotes