Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act ("Act") in its disposition of an open records request submitted by inmate Uriah Pasha ("Appellant"). For the reasons stated below, we find no violation of the Act.
By request dated September 12, 2019, Appellant asked for "A copy of the September 4, 2019 correspondence to: KSP Internal Affairs Office from Uriah Marquis Pasha # 092028 Date September 4, SUBJ: Unregistered Property; and KSP Internal Affair's response thereto." Appellant filed an appeal with this office on September 23, 2019, claiming that KSP had violated the Act by not responding to his request. This office designated the appeal as Appeal # 400.
On September 26, Appellant filed another appeal of his September 12 request, this time attaching a copy of the denial from KSP dated September 20, 2019. KSP denied the request on the basis that Corrections Policies and Procedures ("CPP") 6.2 II. G.1. and 2. require that "you must sign your documents with your DOC committed name and number first. You have signed this document with your committed name second." 1 In this appeal, Appellant claimed that the name he used to sign the request was proper under CPP 6.2 II. G. 2. This appeal is designated as Appeal # 407.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to both of the appeals. She first stated that Appeal # 400 was "premature and unperfected. KRS 61.880(2)(a) requires the person appealing the record request to 'forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. ' The Attorney General according to this statute and its own regulation, 40 KAR 1:030, should not consider this appeal." We concur with Ms. Barker that Appeal # 400 is premature and unperfected. For purposes of administrative efficiency, we consolidate Appeal # 400 and Appeal # 407 in this decision.
Appeal # 400 . The request attached to Appeal # 400 is dated September 12, 2019. It was date stamped as received by KSP on Friday, September 13. The Department of Corrections and its correctional facilities, such as KSP, have five calendar days, excepting Saturdays, Sundays, and legal holidays pursuant to KRS 197.025(7), to respond to open records requests. KSP thus had until Friday, September 20 to respond to this request. Ms. Barker explained that a timely response was placed in the institutional mail to Appellant on Friday, September 20, and that the first day Appellant could have received the response would have been Monday, September 23, the day Appellant mailed his appeal.
As noted by Ms. Barker, KRS 61.880(2)(a) requires the person appealing the record request to "forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. " (Emphasis added). Likewise, 40 KAR 1:030 Section 1, Form, states:
The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
Appellant is an inmate confined in a penal facility, and KRS 197.025(3) 2 therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by Department of Corrections or a correctional facility under its jurisdiction, such as KSP, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3.Because Appellant failed to allow KSP the opportunity to respond before filing Appeal # 400, and filed the appeal without KSP's response, the appeal is both premature and unperfected. See 04-ORD-022; 11-ORD-073; 13-ORD-011; 15-ORD-007.
Appeal # 407 . Ms. Barker's letter provided an email from Derek Roberts, Internal Affairs Supervisor, dated October 2, 2019. In that email to Ms. Weicht regarding the requested record, Mr. Roberts stated: "Internal Affairs Office did not receive any correspondence from inmate Uriah Pasha # 092028 on September 4, 2019 regarding property nor did Internal Affairs send a response to Inmate Pasha correspondence in the month of September 2019." Ms. Barker asserted that KSP Internal Affairs cannot provide a record they did not receive -- the alleged letter from Appellant, or one that they did not possess or does not exist -- the response that Appellant presumed to 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. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 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"). In the absence of the requisite prima facie showing, or any evidence to suggest that the requested records exist, we must support KSP's denial. "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.
With KSP having determined that the responsive records are not in its possession, we find no violation of the Act. Appellant "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses [the records that he] requested," or that KSP ever created a response to Appellant's letter. 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 the existence of requested records can be presumed, or any legal authority mandating the creation and of such records, the Attorney General affirms KSP's denial of Appellant's request.
Although Appellant believes that responsive records should exist, or currently exist in KSP's custody or possession, the Attorney General will not adjudicate that dispute. See 16-ORD-195. Our scope of review in resolving disputes is defined by KRS 61.880(2)(a). 3 This office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. Further, we ordinarily "decline the invitation to invade the prerogative of public agencies in determining. . .what records they must create." See 95-ORD-48; 16-ORD-099; 12-ORD-019 n. 3. There is no evidence in the record on appeal to refute KSP's position that no responsive records exist. Based upon the foregoing, this office affirms KSP's denial of Appellant's request, albeit on grounds other than those cited in KSP's initial denial. As KSP did not ultimately rely on its initial reason for denial, we are unable to review whether that reasoning was correct or not. KSP has provided documentation to support its denial on other grounds.
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.
Footnotes
Footnotes
1 Kentucky Corrections Policies & Procedures 6.2 I., Definitions, defines "Committed name" to mean "an inmate's name, as it appears on the court order committing the inmate to departmental custody, at the time of his or her initial commitment to the custody of the Department of Corrections." CPP 6.2 II. G. 1. and 2. regulate whether an inmate may use an alias on documents to the Department of Corrections.
2 KRS 197.025(3) states:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
3 KRS 61.880(2)(a) states: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."