Request By:
Uriah Pasha # 092028
Sonya Wright
Amy Barker
Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in responding to inmate Uriah Pasha's request for disciplinary records. We find that EKCC did not violate the Act in denying the request on the basis that no such records exist.
In his open records request dated April 13, 2017, inmate Pasha requested "a copy of any Disciplinary Reports pending against Uriah Pasha # 092028 as of March 31, 2017 to date that are pending Investigation/Adjustment Hearing." The request was stamped as received by EKCC on April 18, 2017. A timely response was sent by EKCC staff, Sonya Wright, on April 18, 2017, stating that "I have done a thorough search of your KOMS [Kentucky Offender Management System] file and you have no pending investigation/adjustment hearings showing." Inmate Pasha appealed that response to this office and provided a "Transfer Authorization Form," dated March 31, 2017, recommending his transfer from Kentucky State Reformatory to EKCC and which contained the statement: "Pasha has had a year clear conduct but now has one pending DR (will be handled before any transfer)." It is apparently this statement on the Transfer Authorization Form that is the basis for inmate Pasha's understanding that there is a pending disciplinary report ("DR").
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on April 26, 2017. In her response, Ms. Barker provided an email from Ms. Wright that stated: "I have attached a copy of inmate Pasha's Disciplinary Violations and as you can see for the status of each violation, they are all finalized and none are still pending." Ms. Barker explained that:
Disciplinary reports for the time frame requested by Inmate Pasha are maintained in KOMS in an offender's record. EKCC staff searched KOMS and could not locate a record that was responsive to the request. See attached email and most recent disciplinary list from KOMS. Only the first page of the list is provided since all of the other pages contain records that are older than those shown on the first page . . . Inmate Pasha provides information from another institution on a transfer request concerning a disciplinary report. EKCC staff only has access to the records in KOMS and KOMS does not show the report mentioned or requested as part of Pasha's disciplinary actions.
Much of Inmate Pasha's letter concerns issues other than the provision of records pursuant to an open records request. The Attorney General's Office has acknowledged that it is not the proper forum for and cannot decide issues other than violations of the Open Records Act for appeals initiated under KRS 61.880(1). 14-ORD-083, 14-ORD-049, nt. 2; 12-ORD-110; 08-ORD-142, p. 6; 99-ORD-121, p. 17.
EKCC fulfilled its obligations under the Open Records Act by conducting a search for the alleged records upon receiving inmate 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-ORD-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 Eastern Kentucky Correctional Complex in the disposition of inmate Pasha's Open Records Request.
Also, as noted in Ms. Barker's response, an open records appeal is not the proper forum for Mr. Pasha to raise his complaint that he was transferred so that he would miss his wedding date. The Office of the Attorney General is only granted the authority under KRS 61.880(2) to issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884," and therefore we make no decision regarding these other complaints by inmate Pasha.
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 should not be named as a party in that action or in any subsequent proceeding.