Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Frankfort Police Department violated the Open Records Act in denying James Rocky Wright's May 27, 2004, request for records reflecting disciplinary actions against Sergeant Robert Courtney from 1983 to 1985. For the reasons that follow, we affirm the Department's denial of Mr. Wright's request.
On June 1, 2004, the Department notified Mr. Wright that there is "no record of any disciplinary actions taken against Sergeant Robert Courtney during the years 1983 through 1985." On appeal, Mr. Wright "submit[s] copies of newspaper articles to demonstrate that disciplinary action was indeed taken against Sgt. Courtney during this time period; therefore, a record must exist." In supplemental correspondence directed to this office following commencement of Mr. Wright's appeal, Chief Ted W. Evans reiterates:
There are no disciplinary action records against Sergeant Robert Courtney in his personnel records. To my knowledge, Sergeant Courtney was not the subject of any disciplinary actions at any time during his career with the Frankfort Police Department.
In the absence of evidence to the contrary, we affirm the Department's denial of Mr. Wright's request on the basis that it cannot produce for inspection records that it does not possess.
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 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, 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); 04-ORD-075 (agency search for uniform offense reports relating to named individuals as complainants or victims yielded no results because none of the named individuals were involved in incidents as a complainant or victim in the stipulated time frame).
In his supplemental response to Mr. Wright's open records appeal, Chief Evans confirms that "Sergeant Courtney was not the subject of any disciplinary actions at any time during his career with the Frankfort Police Department." The articles submitted by Mr. Wright do not conflict with this statement. The first, an April 1985 article from an unidentified newspaper, indicates that Sergeant Courtney, and other named officers, filed a complaint against the Frankfort Police Department relating to their transfers, and that the complaint was dismissed by the Franklin Circuit Court. The article references a memorandum criticizing the other named officers but makes no reference to any criticism leveled against Sergeant Courtney. The second article, also from an unidentified newspaper, and hand-dated April 4, 1986, indicates that the Kentucky Court of Appeals affirmed the Franklin Circuit Court's ruling in this matter, but contains no reference to disciplinary action against Sergeant Courtney or the other named officers. The third article, extracted from The State Journal, and dated December 18, 1984, recounts the officers' transfer to uniform patrol duty but is again devoid of any reference to disciplinary actions against those officers. In sum, Mr. Wright incorrectly infers that the officers, including Sergeant Courtney, were transferred as the result of a disciplinary action, and the record does not support his inference. The Department offers a reasonable explanation for the nonexistence of the disciplinary records Mr. Wright requests, namely, that no disciplinary action was taken against Sergeant Wright during the course of his employment with the Frankfort Police Department. 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 responsive records exist. We find no error in the Department's response to Mr. Wright'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.
Distributed to:
James Rocky Wright, #142718Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Chief Ted EvansFrankfort Policy DepartmentP.O. Box 697-40602Frankfort, KY 40602
Rob MooreCity AttorneyHazelrigg & CoxP.O. Box 676Frankfort, KY 40602