Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Uriah Pasha, an inmate at the Kentucky State Reformatory (KSR), appeals the denial of KSR to provide him with documents that he alleges were the basis for KSR Internal Affairs Officer Markie R. Pyles' speaking with a female visitor to Mr. Pasha. KSR responded that the requested documents do not exist. Based upon KSR's search for the alleged records and the response it provided to Mr. Pasha, we find no violation in KSR's disposition of the request.
By records request dated December 2, 2016, Mr. Pasha requested of KSR: "A copy of the documents(s) received by KSR Internal Affairs Officer Markie Pyles, used as probable cause to detain [a female visitor to Mr. Pasha], October 31, 2016, before the approved visit, to question [the female visitor] ..." Kathy Garrison, Offender Information Specialist, KSR, responded to Mr. Pasha in writing on December 7, 2016, stating:
I am writing in response to your request for a copy of documents received by Internal Affairs Office used as probable cause to detain [the female visitor] on October 31, 2016. I have contacted Captain Michael Williams in the Internal Affairs Office regarding this request and there are no documents in relation to this visit or that were obtained prior to [the female visitor's] visit. All individuals are subject to pat downs, searches and questioning while on institutional grounds as stated in CPP 9.8 (II)(B). In accordance with the Attorney General's opinion # 82-234, I am not required to create a document(s) and/or record(s) which do not already exist (see attached request), therefore your request is being denied.
Mr. Pasha, dissatisfied with Ms. Garrison's response, appealed to the Office of the Attorney General by letter dated December 8, 2016. Mr. Pasha claimed that KSR had received information that formed the basis for KSR Internal Affairs Officer Markie Pyles to interview Mr. Pasha's female visitor on October 31, 2016. Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal. Ms. Barker provided an affidavit from Internal Affairs Officer Markie Pyles in which he stated that: "Part of my duties include interviewing an inmate visitor if a need arises. I spoke with [the female visitor] on October 31, 2016. I did not receive any records concerning [the female visitor] prior to our conversation. The records requested in the open records request do not exist."
KSR fulfilled its obligations under the Open Records Act by conducting a search for the alleged records upon receiving Mr. Pasha's request; determining that no responsive records existed; determining that there was no requirement for the record to exist; and then notifying him that there were no responsive records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). We find no violation of the Kentucky Open Records Act by the Kentucky State Reformatory in the disposition of Mr. Pasha's Open Records Request.
Either party may appeal this decision 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 must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.