Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in the disposition of Uriah M. Pasha's November 30, 2017, request for a "copy of the e-mai 1(s) CUA -- Lisa Brickey submitted to Aramark Supervisor -- T. Gullett, APRN Tyara Hughes, and NSA -- K. Duvall on November 30, 2017 concerning Uriah Pasha # 092028 having TB, and the discontinuance of Uriah Pasha # 092028 High Protein Low Carb Medical diet; AND [e]ach of the responses to said e-mail. " On December 1, 2017, LSCC Offender Records Custodian Beth Harper indicated the request was "Granted" in the "Disposition" section of the request form. Mr. Pasha asserted on appeal that LSCC did not explain why the e-mai 1(s) to Aramark Supervisor Gullett was not included among the records provided to him. Based upon the following, this office affirms the agency's disposition of Mr. Pasha's November 30, 2017, request.
Upon receiving notification of Mr. Pasha' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LSCC. Ms. Barker clarified that the "requested emails to and from Aramark Supervisor T. Gullett do not exist." LSCC acknowledged that its original response should have advised Mr. Pasha of that fact. However, Ms. Brickey did not create an e-mail to Supervisor Gullett. Attached to Ms. Barker's December 13, 2017, appeal response was a copy of the December 12, 2017, memorandum directed to her by Ms. Brickey confirming that she "did not create an email to Teresa Gullett, Aramark Supervisor, on November 30, 2017 regarding Uriah Pasha # 092028 having TB or discontinuing a special diet. " Relying upon prior decisions by this office, Ms. Barker correctly observed that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess; a public agency discharges its duty under the Act in affirmatively indicating that no responsive documents exist following a reasonable search. Likewise, a public agency is not required to "prove a negative" in order to refute an unsupported claim that certain records exist. Ms. Barker was also correct in asserting that Mr. Pasha's remaining claims are not justiciable in this forum; the Attorney General makes no finding on the alleged constitutional violations, etc., but does conclude, based upon the following, that LSCC discharged its duty under the Open Records Act.
As in 11-ORD-118, 11-ORD-214, 12-ORD-025, 12-ORD-161, 13-ORD-018, and 14-ORD-004, 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 Cnty. Gov't., 172 S.W.3d, 333, 340-341 (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"), 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 LSCC 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 such e-mails existed nor did Ms. Brickey create any such e-mails. 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 [LSCC] possesses such records as [he] has requested," 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 an e-mai 1(s) can be presumed or any legal authority mandating the creation and maintenance of such a record(s), 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 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.