Request By:
Uriah M. Pasha, # 092028
Tammy Skinner
T. Alex Mattingly
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Kentucky Open Records Act in denying Uriah M. Pasha's September 14, 2017, request for a copy of "the Employment/Job Release used to release Uriah Pasha # 092028 from his KDOC EKCC Sanitation Employment/Prison Job [on] August 18, 2017." In a timely written response per KRS 197.025(7), EKCC Offender Information Specialist Tammy Skinner advised Mr. Pasha that she had spoken with Jobs Coordinator and Records Custodian Dorothy Perry, who advised that no documents responsive to his request existed. "Per EKCC [Institutional Policy and Procedure] 19-04-01, Section E, Item [F]," Ms. Skinner continued, "Any inmate classified to unit janitor and whose name appears on the move sheet to anywhere, except a move within the same dorm or to the institutional hospital, will automatically be assigned to no pay status and must be reclassified to work as unit janitor. Inmates who are moved within the same unit may be administratively classified back to unit janitor, if accepted for the job in the dormitory of that unit." In light of this policy, EKCC advised that no document containing a specific reference to Mr. Pasha exists (implicitly relying upon KRS 197.025(2)). EKCC further observed, "there is no record maintained by the Department of Corrections responsive to your request." Relying upon prior decisions of this office, EKCC correctly observed that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess; rather, a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such record exists. In addition, Ms. Skinner noted that she "contacted the Jobs Supervisor in Dorm 2, Office Dakota Benton and he advised that he has received no applications for employment as Janitor in your dorm. "
On appeal, Mr. Pasha first asserted that all DOC records are maintained in the Kentucky Offender Management System ("KOMS"); next, he argued that documentation must exist in support of the September 10, 2017, Disciplinary Report Form, which confirms that he was released from his job on August 18, 2017. According to Mr. Pasha, the DOC is required to retain a "Classification Decision." However, upon receiving notification of Mr. Pasha's appeal from this office, Attorney T. Alex Mattingly, Justice and Public Safety Cabinet, responded on behalf of EKCC as follows:
EKCC staff noted in their response that, per EKCC IPP 19-04-01, an inmate is automatically released from an assigned janitor job when he or she moves dormitories, which is the case with Mr. Pasha. It appears that no document is created for this action. The date that the automatic action occurred is recorded in [KOMS] as a notation, but no formal document is created. Accordingly, EKCC staff acted appropriately when they notified Mr. Pasha that no documents exist that are applicable to his request. See 17-ORD-162.
Mr. Mattingly further noted that EKCC subsequently provided Mr. Pasha with "more information via a redacted copy of the facility move sheet request, and an explanatory memo regarding the procedure for moving inmates between dormitories. " Attached to Mr. Mattingly's September 26, 2017, appeal response was a copy of Ms. Skinner's September 25, 2017, memorandum to Mr. Pasha; Ms. Skinner first reiterated that a "job dismissal is not completed when inmates move from one Dorm to another and are classified as Unit Janitor as stated in EKCC IPP 19-04-01, Section E, Item F." Ms. Skinner also indicated that she could provide Mr. Pasha with a copy of the "move sheet documenting that you were moved from Dorm 7 to Dorm 2 on 8/18/2017. The requested move was based on institutional need to replace the furniture in Dormitory 7." In addition, Ms. Skinner enclosed a memorandum from the Jobs Coordinator, also dated September 25, 2017, reiterating the above-referenced policy. Based upon the following, this office affirms the disposition by EKCC of Mr. Pasha's request.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 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"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 12-ORD-087; 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"); 12-ORD-195.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 1 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Simply put, Kentucky's Open Records Act applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120; 17-ORD-036. When, as in this case, a public agency denies that any responsive document exists in the agency's possession or control, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the record exists, with the necessary implication being that a public agency discharges its duty under the Act in affirmatively indicating that a certain record is nonexistent, and explaining why, as EKCC did here. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122. In the absence of any legal authority requiring EKCC to create or maintain such a record or any objective proof to refute its explanation of the reason that no such record was ever created, this office affirms the denial of Mr. Pasha's request.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.
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