Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in its response to the Open Records Request submitted by inmate Uriah M. Pasha. For the reasons stated below, we find that LSCC did not violate the Act.
On January 22, 2018, LSCC received a Request to Inspect Public Records form from inmate Uriah Pasha ("Appellant"). Appellant submitted the form seeking documents from his medical record history. Appellant specifically requested a copy of "lab test results for the blood drawn October 2013, November 2013, December 2013, January 2014" and the test results that first indicate that Appellant suffered from one on a number of listed medical deficiencies. On January 25, 2018, Medical Records Clerk Tina Moore issued a response on behalf of LSCC. Ms. Moore stated that "there is no public record maintained by the Department of Corrections responsive to your request." Ms. Moore went on to describe her search of the medical record. She notes that "I conducted an extensive search of your records and found no labs in your chart for the months of October, November and December of 2013." Ms. Moore informed Appellant that she could not find lab test results for January 2014, but "[l]ab results for January 2014 was [sic] charted on the Progress Note of 02/24/2014." Ms. Moore noted that LSCC would provide "lab work from Morgan County ARH for the month of October 2013" and an educational handout given to Appellant on May 7, 2010 as a response to his request. The disposition section on Appellant's request form indicates that the LSCC response consisted of twenty-nine (29) pages.
Appellant filed an appeal with this office on January 27, 2018. In his appeal, Appellant contested LSCC's statement that the documents do not exist and requested that this Office conduct an investigation of the purported absence of the records. He notes in his appeal that the Kentucky Department of Corrections "mandates that every prisoner receive a Mandatory Physical Examination during their birth month each year" and "[s]aid physical requires blood to be drawn and tested." Appellant states that "[t]he Department of Libraries 1 require these records to be maintained for twenty (20) years, and Ms. Moore must prove a negative on these records[.]"
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of LSCC. Ms. Barker states that LSCC conducted an additional search of the medical records upon receipt of the appeal, and "no additional lab reports were located." Ms. Barker cites a number of Attorney General Opinions to support the statement in the LSCC denial that a public agency cannot afford a requester access to a record that it does not have or which does not exist. Ms. Barker also defends the LSCC response by citing a number of Open Records Decisions finding that agencies are not required to prove a negative when explaining that they do not have a record, or when asserting that a record does not exist.
The Attorney General has long recognized that a public agency cannot afford a requester access to a nonexistent record or those records it does not have in its possession. 07-ORD-190, p.6, 06-ORD-040. A public agency cannot afford a requester access to records which it does not have, or which do not exist. 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-ORD-150, 09-ORD-088, 04-ORD-043. However, the Attorney General does require that the agency offer some explanation for the nonexistence of the records. See 11-ORD-041, p.2; 10-ORD-222.
In 95-ORD-96, this office established a standard by which to measure the adequacy of an agency's search for public records. A public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). This office finds that agencies meet the "good faith" standard of 95-ORD-96 upon sufficient documentation of the effort to identify and locate responsive documents and explain why they do not exist. See 16-ORD-097 (finding Mayor's description of an exhausting search was an adequate search recognized in 95-ORD-96); 04-ORD-149 (finding the response of Kentucky Retirement Systems documented a search using methods which could reasonably be expected to produce the records requested).
The record establishes that LSCC fulfilled its obligations under the Open Records Act by reviewing existing records to find documents to meet the description of the records requested. The record also shows that LSCC conducted an additional search of the medical record after receiving notice of Appellant's appeal. Ms. Moore documented the search in the denial letter and informed Appellant of the specific records she could not locate. She also let Appellant know that the records she found did not state a cause for the medical deficiencies listed in his records request. Ms. Moore made an additional note to remind Appellant that his medical records are open to personal inspection "as long as [he is] not housed in a segregation dorm." The record contains sufficient documentation of the steps taken to identify and locate responsive records to determine that LSCC fulfilled its responsibilities under the Open Records Act. Thus, we find that LSCC did not violate the Act.
The Attorney General cannot grant Appellant's request for an investigation into LSCC's record retention. This office does not investigate retention policies or whether an agency is in compliance with those policies. KRS 61.880(2)(a) 2 provides this office jurisdiction to review open records appeals and issue a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. That statute does not provide this office with the authority to conduct investigations. Issues of record retention should be addressed to the Department for Libraries and Archives.
Either party aggrieved by 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 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.
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