Opinion
Opinion By: Andy Beshear, Attorney General; Taylor Payne, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in its disposition of an open records request submitted by inmate Uriah Pasha. For the reasons stated below, we find that EKCC did not violate the Act.
On September 14, 2017, Pasha submitted an open records request to EKCC for "a copy of Uriah Pasha 092028 Grievance # R17-355; and Pasha's Letter 8/25/17 to John Dunn; and John Dunn's Response to Pasha 9/1/17." EKCC responded on the same day. The agency informed Pasha that Grievance # R17-355 did not contain a reference to him, and therefore it would not provide the Grievance. The agency did provide copies of the letters sought by Pasha.
On September 20, 2017, Pasha initiated this appeal. He argues that EKCC failed to include the Grievance that was attached to "Pasha's Letter 8/25/17 to John Dunn." We understand Pasha's appeal to suggest that the Grievance he sought was also attached to the letter to John Dunn and should have been produced by EKCC when it provided him a copy of the letter he sent to John Dunn.
EKCC responded to Pasha's appeal, and claims that the letter from Pasha to John Dunn possessed by EKCC does not have an attachment. It additionally asserts that the Grievance he seeks did not contain any reference to him, and therefore could not be produced pursuant to KRS 197.025(2), incorporated into the Open Records Act by way of KRS 61.878(1)(1).
EKCC is not required to produce a record that it does not possess. See 15-ORD-151 (holding that agency is not required to produce nonexistence record or prove a negative to refute claim that certain records exist). A public agency discharges its duty under the Open Records Act by affirmatively indicating that a record does not exist. Id. (citing 98-ORD-154, p. 2). Here, upon learning that Pasha disputed its production of the letter to John Dunn for failure to include the attachment, EKCC informed Pasha that it did not possess the attachment. EKCC has discharged its duty under the Open Records Act.
Additionally, EKCC is not required to produce a record for Pasha that does not contain a specific reference to Pasha. KRS 197.025(2) (incorporated into the Open Records Act by KRS 61.878(1)(1)). If, as Pasha appears to state on appeal, the Grievance that was attached to the letter to John Dunn is Grievance # R17-355, EKCC has stated that the Grievance does not contain a specific reference to Pasha. Accordingly, EKCC was not required to disclose that document, even if it did possess it as an attachment to the letter to John Dunn.
EKCC attached an email to its response from Barry Frisby, Grievance Coordinator at the Department of Corrections. Mr. Frisby indicates that Pasha may have indicated the wrong Grievance number on his open records request, as DOC does possess other Grievances filed by Pasha. Thus, if Pasha sought a Grievance that he previously filed but incorrectly cited the wrong Grievance number, Pasha could submit another request that would likely entitle him to the proper Grievance that he seeks to inspect. However, based on the request he submitted, EKCC did not violate the Open Records Act.
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.