Request By:
Uriah Pasha, # 092028
Sonya Wright
Angela Cordery
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 an email from Chaplain Art Turner at Kentucky State Reformatory (KSR) to KSR Administrator Specialist Phillip Campbell. We find that EKCC did not violate the Act in denying the request on the basis that no such record exist, and by directing Mr. Pasha to the appropriate public agency (Kentucky State Reformatory) that would be more likely to be able to produce the records he requested.
On April 17, 2017, Uriah Pasha, inmate # 092028, made an open records request to EKCC, wherein he asked for: "A copy of the correspondence/ e-mail that KSR Chaplain Art Turner sent to KSR Administrator Specialist Philip Campbell March 31, 2017 concerning prisoner Uriah Pasha 092028 marriage to Sandra Riley April 17, 2017." Sonya Wright, Offender Information Specialist, EKCC, timely responded to Mr. Pasha's request on April 19, 2017, stating that she had "done a thorough search of your KOMS [Kentucky Offender Management System] file and no correspondence/ email found from KSR Art Turner sent to KSR Administrator Specialist Phillip Campbell with date of March 31, 2017." Ms. Wright went on to mention that she had found a memo from Chaplain Art Turner to Warden Aaron Smith, dated February 7, 2017, "denying marriage to Sandra Riley," and another memo from Chaplain Turner to inmate Pasha, dated January 10, 2017, "in regards to marriage of Sandra Riley." Ms. Wright stated that, if Mr. Pasha wanted a copy of either of those records, he would need to submit a new request, but that, for an email generated by Chaplain Turner, he would need to send an open records request to Kentucky State Reformatory records department and "request a copy through them since Chaplain Turner is employed at the facility." Inmate Pasha appealed that response to this office on the basis that Ms. Wright did not contact Chaplain Turner to ask him "where he logged the requested documents."
Angela Cordery, Staff Attorney, Justice and Public Safety Cabinet, responded to the appeal on May 2, 2017. In her response, Ms. Cordery explained that:
In his letter of appeal, inmate Pasha asserts that the document must exist because EKCC advised him of other records which related to his request. The institution met its obligation by explaining that the email sought did not exist. Inmate Pasha offers nothing to indicate that the email existed and has failed to make a prima facie showing that the record exists. "In the absence of the requisite prima facie showing, this office must affirm the [institution's] denial of [inmate Pasha's] request in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190." 08-ORD-189, p. 10 (*6). See also 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189, 11-ORD-081.
Ms. Cordery further explained that EKCC provided Mr. Pasha a subsequent response on April 28, 2017, in which the address for Kentucky State Reformatory was included so as to fully comply with the requirement of KRS 61.872(4). 1
EKCC fulfilled its obligations under the Open Records Act by conducting a reasonable search for the requested 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).
The procedural violation of KRS 61.872(4) was remedied on appeal and we find no substantive violation of the Kentucky Open Records Act by Eastern Kentucky Correctional Complex 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 should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.872(4) states: "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."