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 denying Uriah M. Pasha's December 6, 2017, request for a "copy of the Instructions issued to Uriah Pasha # 092028 by [Little Sandy Correctional Complex ("LSCC")] Medical Dept. which informs him of what Canteen items he may purchase while on the [h]igh [p]rotein low carb [diet] RX recommended by Dr. James Arnold 10/11/2017." In a timely written response, Medical Records Clerk Tina Moore advised Mr. Pasha that she "conducted an extensive search of your records and found no record of written documentation issued regarding your diet. You were given verbal instructions regarding the high protein/ low carb diet. You can also request to view your records as long as you are not housed in a segregation dorm." In his December 12, 2017, letter of appeal, Mr. Pasha disputed the position of LSCC. Mr. Pasha maintained that he "was never given any verbal instructions regarding his high protein/ low carb diet. " Had I received such instructions, Mr. Pasha observed, "there would be a note in my file detailing who gave said instructions when and where." Mr. Pasha did not provide any proof in support of this assertion, but argued that Ms. Moore is lying because LSCC discontinued his diet based on his alleged failure to follow the diet protocol when he did not receive any such protocol.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LSCC. Ms. Barker reiterated that LSCC did not locate any responsive instructions despite conducting a thorough search of Mr. Pasha's medical record, citing multiple prior decisions by this office in support of her position that a public agency such as LSCC cannot provide a requester with access to a nonexistent record or that which it does not possess. Nor is a public agency required to "prove a negative" in order to refute a claim that a certain record exists under existing legal authority. Ms. Barker also correctly noted that a factual dispute regarding whether Mr. Pasha received verbal instructions regarding his diet cannot be resolved in the context of an Open Records Appeal.
As in 11-ORD-118, 11-ORD-214, 12-ORD-025, 12-ORD-161, 13-ORD-018, and 14-ORD-004, for example, 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, and 17-ORD-215, 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, Ky., 172 S.W.3d, 333, 340-341 (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 responsive instructions were created or exist in the custody or possession of the agency. 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 [a record such as he] requested," or that one was ever created, 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 records can be presumed or any legal authority mandating the creation and maintenance of such records, 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.