Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in its disposition of Steven Farmer's request for copies of any "notification, " directed to the KSP by the Cabinet for Health and Family Services by any of four named individuals. Because the search conducted by the KSP did not yield any records matching this description, the KSP is necessarily unable to honor his request. Although the KSP did not violate the Open Records Act insofar as an agency cannot make available for inspection or copying a record which no longer exists or is not in its possession, this appeal raises a records management issue which is appropriate for review by the Department for Libraries and Archives. Pursuant to KRS 61.8715, this office therefore refers the matter to the Department for additional inquiry as that agency deems appropriate.
By letter dated May 2, 2005, Mr. Farmer requested that the KSP "do a search of its records to determine whether Debbie Estill, FSOS of Brooksville DCBS (CHFS), Tracey Heflin, BS-SSWII of same agency, Ed Rudd, [Bracken County] Attorney or Sheriff Mike Nelson sent 'notification, ' as referenced on the attached DSS-115 to the [KSP]. If such a record is located, Mr. Farmer would "like to receive a copy by mail" from the KSP. "In an attempt to locate records of unreported incidents involving the mistreatment of N.F. by Cabinet employees," Mr. Farmer "deemed it necessary" to inquire as to whether the KSP is in possession of the requested records. In a letter dated May 9, 2005, Mr. Farmer initiated this appeal from the apparent failure of the KSP to respond.
Upon receiving notification of Mr. Farmer's appeal from this office, Marlene Mundine, Administrative Specialist, Office of Legal Services, responded on behalf of the KSP. According to Ms. Mundine, "the retention schedule for DSS-115's sent to KSP is one year in addition to the current year. " Accordingly, the KSP "can no longer verify if, in fact, KSP Post 6, Dry Ridge, did receive notification from the Cabinet for Families and Children." Although Ms. Mundine has "attempted to locate any other record that may exist that may confirm such notification, " to date, Ms. Mundine has not been able to locate "any case associated with any of the individuals mentioned in the documents supplied by Mr. Farmer." In closing, Ms. Mundine suggests that Mr. Farmer may want to contact the Bracken County Attorney and Sheriff if he has not already done so in order to access any records "that may remain in their possession." If Mr. Farmer has any "specific information" regarding KSP records "known to exist," he is "welcome to submit" another request.
As repeatedly recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the KSP cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the KSP ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. Rather, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
Nevertheless, the General Assembly recognized an "essential relationship" between the intent of the Open Records Act and that of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records, with the enactment of KRS 61.8715. In relevant part, KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements 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]." Since the 1994 amendments took effect, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must offer some explanation for the nonexistence of the records at a minimum. 00-ORD-120 (Kentucky State Penitentiary explained that no x-ray existed because none was taken thereby satisfying its burden of proof) ; 97-ORD-17 (evaluations were not in the custody of the university because written evaluations were not required by university regulations); 94-ORD-140 (records of the subject investigation were not in the custody of the sheriff because the sheriff did not conduct the investigation).
In this case, the explanation offered by the KSP is that the requested DSS-115 forms are only retained for "one year in addition to the current year. " Given the dates of the events in question, the KSP is therefore unable to verify whether KSP Post 6, Dry Ridge, did, in fact, receive such notifications. Of particular relevance here, KRS 171.420 provides that the State Archives and Records Commission "shall advise the Department for Libraries and Archives on matters relating to archives and records management," and "shall have the authority to review and approve schedules for retention and destruction of records submitted by state and local agencies. " In all cases, "the commission shall determine questions which relate to destruction of public records, and their decision shall be binding on the parties concerned and final . . ."(Emphasis added). On a related note, KRS 171.530 charges the Commission with the duty to "establish standards for the selective retention of records of continuing value," and the DLA with the duty to "assist state and local agencies in applying such standards to records in their custody. " When viewed in conjunction, these provisions confirm that any schedule for retention and destruction of public records developed by state or local agencies such as the KSP should be approved by the Commission prior to implementation and applied with the assistance of the DLA if necessary; any questions relating to destruction of public records shall be determined by the Commission as well.
Our research has not revealed, nor has the KSP referenced, any provision of an approved KSP Records Retention Schedule, or any schedule for that matter, pursuant to which records of the type at issue must only be maintained for the period suggested by the KSP on appeal. In the event that a record is not listed on an approved schedule, as appears to be the case here, the requisite authority to destroy the record is necessarily lacking. Because the facts presented suggest that records may have been destroyed improperly, albeit in good faith, a referral of the matter to the Department for Libraries and Archives is warranted. Ultimately, this office is not empowered to afford Mr. Farmer the relief which he seeks by declaring the failure of the KSP to produce nonexistent records a violation of the Open Records Act, or to otherwise dictate the procedures which the KSP must follow relative to retention and destruction of public records; nor can this office engage in independent fact-finding. Such issues simply cannot be adjudicated in the context of an Open Records appeal. By affirmatively indicating that no records exist which are responsive to Mr. Farmer's request in writing, the KSP discharged its duty under the Open Records Act. On the related issues, this office respectfully defers to the Archives and Records Commission.
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.