Monday, March 21, 2011

Inmate wins one, loses one in open-records cases; AG reminds agency of its responsibilities

An inmate at the Kentucky State Reformatory at LaGrange was unfairly denied access to a record he requested, according to an opinion issued March 14 by the attorney general's office. The same inmate lost another appeal because the office found no evidence that the record he requested exists -- a common reason for denying open-records appeals. But his winning case reminded agencies they they may have to look in more than one place for records that are requested.

Uriah Pasha sought copies of reports related to an incident that resulted in his segregation from other inmates. The reformatory and the Justice Cabinet denied his request, saying no such reports existed in his institutional file. However, the attorney general's office found that the state's Corrections Policies and Procedures manual provides that an “alleged violation of rules and regulations shall be fairly processed,” and that the “inmate’s due process rights shall be fully protected,” and the cabinet later acknowledged that a corrections officer filed a report on the incident. In its decision, which has the force of law, the attorney general said Pasha is entitled to a copy.

The decision said the reformatory's "response was deficient insofar as it failed to acknowledge the existence of at least one arguably responsive record, and the cabinet only partially mitigated this error in its supplemental response. It is incumbent on KSR to conduct a search for responsive records that extends beyond Mr. Pasha’s institutional file and to provide him with any nonexempt responsive records that search yields. If the search yields no additional responsive records, it is incumbent on KSR to so advise Mr. Pasha and to provide a plausible explanation for the nonexistence of records contemplated by its own policies and procedures."

In the other appeal, the attorney general found no evidence that the records Pasha sought, a behavior control report supposedly written by a staff psychologist, existed. A public agency is not required by the Open Records Act to create records that do not exist to meet a citizen's request. Many inmate appeals are rejected on these grounds, but Pasha's successful appeal is a reminder that public agencies have a responsibility to look for records and, if they do not exist, explain why.

The text of any open-government decision by the attorney general is available via the link at the bottom of the KOG Blog.

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