Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act in responding to the open records request of inmate Uriah Pasha. In his request received April 29, 2015, Mr. Pasha requested copies of "1.) The E-mail to Deputy Warden James Coyne from KSR's I. T. Dept. April 0215 concerning Uriah Pasha 092028 Typewriter; AND 2.) The April 22, 2015 written statement Deputy Warden Coyne took from Uriah Pasha # 092028 concerning damage to personal typewriter. " For the reasons stated below, we find no substantive violation of the Act.
On May 6, 2015, Offender Information Specialist William Mustage denied Mr. Pasha's request for e-mail with the following explanation:
KSR is withholding staff e-mails under the security exemption as explained below with this response. For the aforementioned reason, your request is denied.
The security exemption is contained in KRS 197.025, and is incorporated into the Open Records Act through KRS 61.878(1)(l). KRS 197.025(1) exempts records from disclosure if it would pose a security risk:
KRS 197.025(1). The Attorney General's Office has on prior occasions recognized that the discretion afforded the Commissioner in KRS 197.025(1) is broad, and that it will not "substitute its judgment for that of the correctional facility or the Department of Corrections." [Citations omitted.]
Furthermore, emails can contain opinions, recommendations and preliminary information other than that which is intended to give notice of final action of a public agency. For this reason as well, you[r] request is denied.
Per: KRS 61.878(1)(i,j): Preliminary drafts, pending transfers, notes, pre classification work sheets, victim impact statements, letters written by people or prosecutors, pre-parole progress reports, i.e. notes made by staff which are not intended to give notice of final action of a public agency or preliminary recommendations and preliminary memoranda in which opinions are expressed or polic[i]es are formulated or recommended are exempt from disclosure.
Mr. Pasha's appeal was received in this office on May 20, 2015. In a June 2 response, Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, explained that "[s]ubsequent to this appeal, it has been determined that there is, in fact, no such email as described by Inmate Pasha in his request."
A public agency has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable effort to identify and locate the requested records." 95-ORD-96 (internal quotation marks omitted).
While the "security exemption" under KRS 197.025(1) affords the Commissioner of the Department of Corrections a broad discretion to deny inmates access to records deemed a security threat, such discretion is "not unfettered." 96-ORD-179. Rather, we have always based our deference to the commissioner's judgment upon the reasoning articulated by the agency in its explanation of how the records pose a threat to security. In its May 6 response, KSR gave no explanation of how the security exemption would apply to all "staff e-mails" as a category. Nor are we aware of any prior decision in which we recognized "staff e-mails" in general as posing an articulable security threat. Thus, the security exemption could not have excused the failure to locate any responsive records and assess their exempt or nonexempt status.
Accordingly, KSR's first obligation under the Open Records Act was to identify responsive records. Based on the fact that KSR did not realize no responsive e-mails existed, but merely denied the request based on what a hypothetical e-mail might contain, we necessarily conclude that the facility committed a procedural violation of the Act by its failure to conduct an appropriate search for the requested e-mail.
Substantively, we note that KSR has provided affidavits from Jeremy S. Mellick, Electronic Technician III, and Deputy Warden James Coyne, both of whom testify that they have searched their computers and e-mail archives and found no such message as described by Mr. Pasha. Deputy Warden Coyne states that he has no recollection of receiving an e-mail about Mr. Pasha's typewriter, while Mr. Mellick states that he earlier "thought [he] may have sent such an email" but "must have been mistaken and never sent such an email. " While Mr. Pasha argues that these affidavits are false, we do not find it inherently incredible that Mr. Mellick could have made a mistake when he believed he might have sent an e-mail about the typewriter.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. We are aware of no established law, policy, or practice pursuant to which an e-mail to the Deputy Warden on this subject would presumptively exist. Therefore, based on KSR's representations, we find no substantive violation of the Act.
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 proceedings.