Request By:
Uriah M. Pasha, # 092028
Amanda Carter
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this appeal by letter dated July 28, 2017, challenging the denial by Eastern Kentucky Correctional Complex ("EKCC") of his July 4, 2017, request for a copy of the "consent form signed by Uriah Pasha 092028 that gave Nurse Aeriel Frederick [permission] to draw blood and administer units of fluids via IV July 4, 2017 while strapped in the restraint chair." In a timely written response, Medical Records Secretary Amanda Carter advised Mr. Pasha that upon conducting a "thorough search" of his medical file, no responsive consent form was located; accordingly, EKCC denied his request.
On appeal Mr. Pasha asserted that consent must be given and further maintained that EKCC is required to explain why "it did not maintain the record as required." Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC. Reiterating that EKCC did not locate a consent form despite conducting a thorough search of Mr. Pasha's medical record, Ms. Barker correctly observed that a public agency such as EKCC 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 a claim that a certain record exists under existing legal authority. Citing Log Numbers 201700288, 201700300, and 201700310, Ms. Barker noted that Mr. Pasha has filed multiple appeals involving various purported orders and authorizations "for the blood being drawn and IV fluids being administered on this date because he states that it was forcibly taken. . . . He has provided no information to the [Attorney General] indicating that he signed a consent."
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 correctional facility 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 denials 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 v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d, 333, 340-341 (2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"), 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 EKCC 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 consent form existed in the custody or possession of the agency. 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 [EKCC] possesses [a record such as he] requested," or that one was ever created, 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 any facts from which existence of such records can be presumed or any legal authority mandating the creation and maintenance of such records, the Attorney General 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 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.