Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this appeal challenging the denial by Kentucky State Reformatory (KSR) of his July 14, 2015, request for a copy of records pertaining to a July 11, 2015, incident which resulted in Disciplinary Report No. KSR-2015-02059. Of the four items requested, the extraordinary occurrence report (EOR) and the "photo of evidence" remain in dispute. KSR received the request on July 21, 2015, and issued a timely written response on July 27, 2015. Offender Information Specialist William Mustage advised Mr. Pasha, in relevant part, that he spoke with the Deputy Warden's secretary, who logs and maintains the extraordinary occurrence reports, and she informed him that no EOR was completed for the specified incident. Because no EOR was created, no photos were "taken and attached to the dismissed disciplinary report or photos taken regarding the incident in question[.]" KSR denied Mr. Pasha's request as to said nonexistent records. Quoting the Report, which indicated that "Sergeant Kimberly Kelley viewed video of the incident," Mr. Pasha asserted that an EOR and photos were required under the relevant policy.
Upon receiving notification of Mr. Pasha's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Relying upon Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d, 333, 340-341 (2005) and prior decisions of this office, Ms. Barker correctly asserted that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. Nor is a public agency required to "prove a negative" in order to refute an unsupported claim that a certain record exists. KSR observed that Mr. Pasha "makes a bare statement that policy requires the EOR and photos. He provides no cite to any policy to support his assertion. EORs are covered by CPP 8.6 and nothing in that policy requires an EOR to be prepared in the situation described" in his appeal or the attachments. KSR again confirmed that an EOR was not created for the incident at issue and reiterated that no photos would have been taken of the incident. Ms. Barker enclosed the August 13, 2015, affidavit of Deputy Warden James Coyne attesting that he reviewed the EOR Log and the EORs created "and there was no EOR created for an incident that took place on 7/11/2015 involving Uriah Pasha 092028." Also included with Ms. Barker's appeal response was a copy of an e-mail directed to her by Mr. Mustage on August 13, 2015, in which Mr. Mustage reiterated that no EOR of the incident was created; also, the "D/R was dismissed and photos would only have been taken as evidence/attachment to an EOR."
Because KSR advised Mr. Pasha in a written response that no responsive EOR or photograph exists in the custody or possession of the agency, following a "search using methods which [could] reasonably be expected to produce the record[s] requested," this office has no basis upon which to find that KSR violated the Open Records Act in the absence of any irrefutable proof that KSR actually created an EOR concerning the incident described or has any responsive photographs. 05-ORD-109, p. 3. KSR cannot produce that which it does not have nor is KSR required to "prove a negative" under existing law. See 11-ORD-122.
As in 11-ORD-118, 11-ORD-214, 12-ORD-025, 12-ORD-161, 13-ORD-018, and 14-ORD-004, 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 KSR 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-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 public records in the absence of a prima facie showing that records being sought did, in fact, exist in the possession of the agency. See 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189; 11-ORD-209; 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" ). "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 document or photograph was located and explaining why. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. Mr. Pasha "has produced no affirmative evidence, beyond mere assertions, that [KSR] 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 , and prior decisions of this office including 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.