Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northern Kentucky University's Department of Public Safety violated the Open Records Act in the disposition of Elizabeth Blackmore's April 7, 2003 request for "any and all reports [the Department has on her] of any type of character." Ms. Blackmore expressed particular interest in the report or reports generated by the Department on November 22, 2002 when she was escorted by three public safety officers "off the campus from the theater." For the reasons that follow, we affirm the Department's disposition of her request.
On April 10, 2003, NKU Vice President for Legal Affairs and General Counsel Sara L. Sidebottom notified Ms. Blackmore that the Department of Public Safety had "reviewed their files" and provided her with "everything related to [her] request," consisting of a January 14, 2003 letter to her from Dean of Students Kent Kelso, a January 21, 2003 miscellaneous incident report, and a January 22, 2003 letter to her from Dean Kelso. Dissatisfied with the Department's response, Ms. Blackmore initiated this open records appeal on April 11, 2003, asserting that the Department did not comply with KRS 61.880 in the disposition of her request.
In correspondence directed to this office following commencement of Ms. Blackmore's appeal, Ms. Sidebottom elaborated on the Department's position. She advised:
The University has made a complete and thorough review of the records maintained by the Department of Public Safety and has determined that it supplied Ms. Blackmore with all reports that contain her name in its response dated April 10, 2003. While the response could have been clearer in explaining that no report dated November 22, 2002, existed and could therefore not be produced, the University did in fact comply with the spirit of the Open Records Law by making a full disclosure of all reports that contained Ms. Blackmore's name, as she requested.
The University interpreted Ms. Blackmore's request of "three reports from the three police officers including the names of the three police officers" to also refer to the incident of November 22, 2002, for which no report was made. If that interpretation is incorrect, and Ms. Blackmore was in fact making a request for reports of some other incident, please be advised that the only report containing her name was provided to her in response to her request of April 7, 2003.
On this basis, Ms. Sidebottom asserted that the Department fully complied with Ms. Blackmore's April 7 request. We agree.
It is well established that a public agency cannot afford a requester access to a record which does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist.
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirement of [KRS 171.410 to 171.740 , dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 00-ORD-120 (x-rays of inmate's injuries not taken and therefore responsive record did not exist); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention requirements and were therefore not available for review).
In her supplemental response to Ms. Blackmore's open records appeal, Ms. Sidebottom explained that no reports were generated as a result of the November 22, 2002 incident and reaffirmed that the Department had made full disclosure of all reports of any character that relate to her. The Department offers a reasonable explanation for the nonexistence of the particular report[s] Ms. Blackmore requests. There is nothing in the record on appeal that "appears to raise the issue of good faith," and we therefore decline "to question the [Department's] veracity." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977) cited in 95-ORD-96 and 02-ORD-188.
While there may be occasions when, under the mandate of KRS 61.8715, the Attorney General refers an open records appeal and decision to the Department for Libraries and Archives for further inquiry under Chapter 171, we do not believe that this appeal warrants additional inquiries. The Department has satisfied its statutory burden of proof by explaining why no additional responsive records exist. We find no error in the Department's response to Ms. Blackmore's 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.