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 M. Pasha's November 11, 2013, request for "all physical therapy notes concerning [his] left foot during March 11, 2011 through September 1, 2011; and the issuance of insoles to [him] during that period." Although Mr. Pasha initiated his appeal by letter dated November 19, 2013, "for noncompliance," enclosing a copy of a "Request to See Staff" dated March 8, 2011 (Reason: "Left foot bone hurting"), and a note dated August 9, 2011 (indicating that he was issued one pair of insoles for use "in shoes of choice"), KSR did not actually receive his request until November 18, 2013, as the agency established upon receiving the notification of his appeal from this office. Karen Vesty, KSR Medical Records Custodian, issued a timely written response per KRS 197.025(7) on November 20, advising Mr. Pasha that "no document exists in your medical records corresponding to the document description and date(s) of treatment you provided[.]" Citing prior decisions by this office, Ms. Vesty asserted that a public agency cannot provide a requester with access to "a record that it does not have or which does not exist" and the agency "discharges its duty under the Act by affirmatively so stating."
On appeal, KSR amended its response "to include the fact that Ms. Vesty conducted a reasonable search by examining Mr. Pasha's medical record for that period of time." Citing 11-ORD-170, among other decisions by this office, KSR correctly observed that in addition to informing the requester of the records' nonexistence, "the Attorney General's Office has also required that agencies provide an explanation of the nonexistence and make 'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]'" Staff Attorney Alea Amber Arnett, Justice and Public Safety Cabinet, advised on behalf of KSR that Ms. Vesty's search was reasonable because "physical therapy notes are entered into and maintained in an inmate's electronic medical record. The documents that Mr. Pasha attached to his appeal do not prove otherwise." First, Ms. Arnett continued, "the Request to See Staff document was completed by Mr. Pasha himself and is not a record that is responsive to the request." Second, the note dated 8/9/11 is not maintained in Mr. Pasha's medical records but "appears to be a note issued by a former physical therapy staff member in order to authorize Mr. Pasha to possess insoles in his personal property in the institution."
By letter dated November 25, Mr. Pasha challenged the agency's denial, enclosing a copy of his November 18, 2013, Inmate Grievance Form, submitted at Little Sandy Correctional Complex, describing the problem as being that medical staff at LSCC "claimed the attached Rx prescription is not authentic (a forgery) and [it] has not been scaned [sic] into my medical file." The "action requested" was for LSCC to fax the "prescription" to KSR's "Physical Therapy Center to Mr. Michael Gregory (PATA) for him to verify [its] authenticity as well as his penm[a]nship and signature thereon." Under "Informal Resolution Stage" LSCC staff indicated "Old script of 2011 for insoles per KSR -- not found." Mr. Pasha questioned why KSR did not maintain a copy of the "prescription" that he possessed.
Under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office afforded KSR the opportunity address the seeming discrepancy. KSR staff advised Ms. Arnett that normal procedure in the PT Department for documenting equipment issued "is to put it in the EMR. In the case of insoles, there also should be an order from the medical provider. If the computer is down, then there is a temporary note handwritten, with a copy in our file here in the PT Dept. When the EMR is back up, it should be entered at that time." KSR confirmed that it has "no carbon copy of the note," nor was anything located in the EMR. The issuing therapist in this case, Mike Grogg, died last year so KSR was unable to consult him though Ms. Arnett also had KSR verify that an order from a medical provider does not exist. Rather, the only document located "is a referral to PT for evaluation for insoles, which is not a record responsive to his request." 1
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 records being sought 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. Although Mr. Pasha provided "affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested," the fact remains that "we do not have a sufficient basis on which to dispute the [agency's] representation that no such records" were created or maintained in this instance, particularly in light of the agency's belated explanation for the seeming discrepancy upon which Mr. Pasha relied. 09-ORD-214, pp. 3-4; 12-ORD-042. "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 notes were located and ultimately explaining why. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. The agency's final disposition of Mr. Pasha's request is affirmed.
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, # 092028Karen VestyAlea Amber Arnett
Footnotes
Footnotes
1 Ms. Arnett further advised that, although not an issue within our narrow scope of review under KRS 61.880(2)(a), the KSR PT Department "has requested that the medical provider at his current institution assess him and issue insoles if needed."