Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in failing to issue a timely written response per KRS 197.025(7) upon receipt of Uriah M. Pasha's November 26, 2018, request for a "copy of the Informal Resolution and Grievance Committee Dec[i]sion of [KSP] Inmate Grievance Number[s] 18-11-045; 18-11-47-G; and 18-11-O73-G." Upon receiving notification of Mr. Pasha's December 9, 2018, appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Barker indicated that KSP conducted a search for the November 26, 2018, request but had no record of having received it; she enclosed the January 4, 2019, memorandum that Catherine Weicht, Open Records Coordinator, directed to Mr. Pasha, confirming that her "office did an extensive search and found that your request was never received nor processed in this office."
This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204; 18-ORD-006. More specifically, the Attorney General has recognized "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. As in those decisions, the conflicting record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Pasha's November 26, 2018, request for this office to conclusively resolve the related factual dispute. The record lacks any basis to question the veracity of KSP or that of Mr. Pasha, or to conclusively refute the position of either party. In the absence of any irrefutable proof that KSP actually received Mr. Pasha's November 26 request prior to receiving the copy attached to his December 9, 2018, appeal, this office is unable to determine that KSP violated the Act from a procedural standpoint in failing to issue a written response within five working days per KRS 197.025(7). See 18-ORD-006.
In addressing the substance of Mr. Pasha's request, Ms. Barker stated that KSP conducted a search for the records in dispute and ultimately determined that no such records currently exist because KSP never created such records. In her January 4, 2019, memorandum to Mr. Pasha, Ms. Weicht explained that KSP denied his request for the informal resolution and committee decision regarding Grievance numbers 18-11-045-G and 18-11-073-G because, "Per Roger Mitchell, Grievance Coordinator, these two grievances were rejected by his office and as such, they did not go for informal resolutions or to the committee for a decision." Accordingly, no responsive documentation exists. Ms. Weicht further explained that KSP also denied Mr. Pasha's request for such records pertaining to Grievance # 128-11-47-G because, "Per [Mr. Mitchell,] no informal resolution exists for this grievance as it is still being reviewed at the informal level and has not had a resolution as of today. As the committee decision occurs after the informal resolution is complete, no documents would exist at this time from the committee." Ms. Weicht asserted that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. Citing a line of prior decisions by this office, Ms. Barker additionally noted that a public agency is not required to "prove a negative" in order to refute a requester's unsubstantiated claim that certain records exist.
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, 11-ORD-091, 12-ORD-027, 12-ORD-030, 12-ORD-050, 12-ORD-052, 12-ORD-069, and 17-ORD-170, 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 Cty. Gov't, Ky., 172 S.W.3d, 333, 340-341 (2005), 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 KSP 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 informal resolutions or committee decisions existed 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 [KSP] possesses [the records that he] requested," or that KSP ever created such records, 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 affirms the agency's denial of his request.
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.