Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Department of Corrections ("Department") violated the Open Records Act in failing to respond to an open records request from inmate Uriah Pasha. We are unable to resolve the factual dispute regarding receipt of the request, but find no error by the Department in its disposition of the request when it was notified of that request in this appeal.
Uriah Pasha submitted an appeal on April 26, 2017, of an open records request dated April 3, 2017. The copy of the request that he provided to this office asked for: "A copy of Sandra Riley, [address redacted] letter dated October 13, 2016, Re: Visitation Privileges -- Suspended, in which she was [banned] from visiting prisoner Uriah Pasha, # 092028; and Commissioner Rodney Ballard's Response thereto." The request is addressed to Rodney Ballard, Commissioner, Kentucky Department of Corrections, P.O. Box 2400, Frankfort, Kentucky 40602.
After receipt of the appeal, Ms. Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of the Department. Ms. Barker provided copies of two records. The first record is an email from Ms. Barker to Brandi Hawkins, Offender Information Services, Department of Corrections, in which Ms. Barker asks whether the central office received the request, and whether a response had been sent. Ms. Hawkins's email response was that she had "checked our log and Records has not received anything from Pasha as of today." The second record provided by Ms. Barker was an email to her from Briney King, Communications Office, Department of Corrections. In that email, Ms. King stated that she reviewed the appeal and the copy of the request and confirmed that "this office did not receive this request."
Ms. Barker's response to the appeal cited to 16-ORD-276. In that decision, this office reviewed whether the Department had violated the Open Records Act when it failed to respond to an earlier request for the same letter. The requester in that appeal was Ms. Riley herself, and the Department's response to the appeal was, just as in this appeal, that it had not received the request until it received a copy on appeal. As in the current appeal, the Department had searched for the letter after it was notified of the request but had not found it.
KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
This duty is triggered only "upon receipt of a request for a record." Inmate Pasha asserts that the correspondence was dated October 13, 2016, but he did not provide information regarding the date the correspondence was actually mailed, or when it should have been received by the Department. The notice of appeal was sent on Friday, April 28, 2017. Ms. Barker's response, Wednesday, May 3, 2017, to the appeal was made within five business days after it was received by her and a copy of that response was also sent to inmate Pasha. The response to the request thus was made within the five business days allowed by KRS 197.025(7) and was therefore timely.
The Department of Corrections, according to Ms. Barker's letter and attachments, was not aware of inmate Pasha's request until it received the appeal notice from the Attorney General's Office. In the absence of conclusive proof that the Department of Corrections received the request, such as a certified mail receipt and proof of service confirming mail delivery or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute between these parties. 02-ORD-01 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency failed to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet).
The Department of Corrections fulfilled its obligations under the Open Records Act by conducting a search for the correspondence upon notification of the request and then notifying inmate Pasha 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 cannot find that the Department of Corrections violated the Kentucky Open Records Act in its disposition of inmate Pasha's 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.