Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in its disposition of inmate Uriah Pasha's open records request for records related to his assignment to the LSCC labor pool. For the reasons stated below, we find that LSCC did not violate the Act.
By written request dated November 14, 2017, Mr. Pasha requested: "A copy of the classification document(s) used to assign Uriah Pasha # 092028 to Labor Pool; and the job change posted pursuant to LSCC Policy 19-01-01 posting Pasha 092028 job change." Beth Harper, Records Department, LSCC, timely responded to the requests in writing on November 15, 2017. Her memorandum denied that the records existed and explained that Mr. Pasha was "assigned to the Labor Pool in KOMS. No additional documents are used."
On appeal, Amy V. Barker, Assistant General Counsel, Justice & Public Safety Cabinet, responded on behalf of the Cabinet. She explained why the request was initially denied and that the "assignment record" from the Kentucky Offender Management System ("KOMS") had been provided to Mr. Pasha after his appeal clarified what he was requesting:
In the appeal letter inmate Pasha indicated that he wanted the KOMS record assigning him to the labor pool. That record is being provided with this response. Institutional staff believed that he wanted supporting documentation rather than the KOMS entry. No other supporting classification records were created that are responsive to his request. (See Memo of Malcolm Smith attached as exh. 1.)
The request for a record that assigned Mr. Pasha to the labor pool was satisfied on appeal as it was provided to him with Ms. Barker's letter. Accordingly, Ms. Barker was correct in asserting that the appeal is moot as to that record. Pursuant to 40 KAR 1:030, Section 6, which states, "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter[,]" we find this request to be moot.
The remaining justiciable issue raised on appeal is whether LSCC properly denied Mr. Pasha's request for a record that he described as "the job change posted pursuant to LSCC Policy 19-01-01 posting Pasha 092028 job change." In his letter of appeal, he clarified his belief that there should be "classification documentation" assigning him to the labor pool. Ms. Barker provided a memorandum from Deputy Warden Malcolm Smith which explained that Mr. Pasha was assigned to the labor pool by an entry in the Kentucky Offender Management System (KOMS) by a Classification and Treatment Officer (CTO) authorized to make that entry into KOMS. Warden Smith's memorandum clarifies that no classification documentation exists beyond the entry in KOMS, which has been provided to Mr. Pasha. Ms. Barker explained that this is why there are no other classification documents created for the assignment other than the KOMS record.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091. Accordingly, we find no violation of the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.