Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision The issue presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Open Records Act in its disposition of a request for an inmate's JPay email. For the reasons stated below, we find no violation of the Act. Nashawn Tyus, an inmate at the Eastern Kentucky Correctional Complex (EKCC), appeals the denial of a request dated September 6, 2017, wherein he asked for "JPay (letters) documents/e-mail messages related to these dates 7/2/17 5:28 p.m. and 7/25/2017 5:01 pm as evidence for my [forthcoming] legal proceedings." The request was stamped as received by EKCC on September 8, 2017. EKCC staff made a timely 1 response on September 11, providing him the JPay message for 7/25/17, but advising him that "There is not a message for 7/2/17 at 5:28 p.m. therefore that request can not be completed." Mr. Tyus appealed that denial by letter to this Office dated September 14, 2017, stating: "I am appealing the attached Open Records Disposition, due to the fact the request is incomplete. They have not provided me with the document for 7/2/17 as requested."
Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of EKCC. She provided a memorandum from Internal Affairs Lieutenant Cody Wallace, 9/27/17, relating that he had conducted a search on Mr. Tyus's JPay account and confirmed that the "other request for a messaged dated 7/2/17 at 5:28 PM does not exist."
EKCC fulfilled its obligations under the Open Records Act by conducting a search for the requested records upon receiving Mr. Tyus's request; determining that no responsive record existed for July 2, 2017; and then notifying him that there was no responsive record for July 2, 2017. On appeal, EKCC confirmed its initial denial by having Lieutenant Wallace, Internal Affairs, search for the requested record again and determining that the record did not exist. "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 EKCC in the disposition of Mr. Tyus'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.
Footnotes
Footnotes
1 EKCC has five calendar days, excepting Saturdays, Sundays, and legal holidays, pursuant to KRS 197.025(7), to respond to request for records from inmates.