Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the 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 herein, we find no violation of the Act.
By request dated September 16, 2019, Appellant asked for "a copy of the letter Uriah Pasha submitted to [Warden] DeEdra Hart, Date September 11, 2019, RE: [Misappropriated] Property/ and Ms. Hart's response thereto." KSP denied the request on the basis that the request was not signed with the inmate's "committed" name as required by Corrections Policies and Procedures ("CPP") 6.2 II. G.1 and 2. 1 Appellant thereafter filed an appeal of that denial, claiming that the name he used to sign the request was proper under CPP 6.2 II. G. 1. and 2.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal. Ms. Barker stated that "[a]fter receipt of the appeal, a search was made for the requested records by the warden's assistant. The search determined that the warden did not receive a letter from inmate Pasha during the relevant time frame. ? . A response letter was not created for a letter the warden did not receive. The warden's office cannot provide a record that it did not receive or does not exist." Ms. Barker attached as Exhibit 1 an email conversation between Catherine Weicht, KSP Open Records & Litigation Coordinator, and Donna Dunbar, Warden Hart's assistant. In the email, Ms. Weicht asks Ms. Dunbar to search the warden's records to see if the requested letter or response was available. Ms. Dunbar confirmed that the warden's office had not received any correspondence from the Appellant in September.
The record establishes that the KSP Records & Litigation Coordinator and the warden's assistant made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," but were not able to locate a responsive record that met Appellant's description. See 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. 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 record does exist, we must support KSP's ultimate 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 made a good faith effort to locate the responsive records, we find no violation of the Act, regardless of whether the search yielded any results. 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 do 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) . 2 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" as "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 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.