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 Covington Fire Department violated the Kentucky Open Records Act in denying the request submitted by Chris Henson for copies of the "written fire response reports for the period of January 1, 2005 - June 27, 2005" concerning three specified addresses. Having received no response to his request dated June 30, 2005, Mr. Henson initiated this appeal by letter dated July 17, 2005. 1 Upon receiving notification of Mr. Henson's appeal from this office, Acting Chief Charles Norris, CFD, advised this office there "were no runs made to the addresses listed during the time frame given by Mr. Henson." According to Chief Norris, the CFD advised Mr. Henson that no responsive records exist by "first class mail to his address of 1939 Augustine Ave., Covington, KY 41014." Attached to the CFD's response is a copy of the "true and accurate account" of the events which precipitated this appeal directed to Chief Norris by Karl M. Chalk, Director of EMS Operations. As explained by Mr. Chalk:
After receiving the request from [Chief Norris] I had perform[ed] a search of the CAD (Computer Aided Dispatch) System using the criteria listed by Mr. Henson. The search returned no fire or EMS dispatches for those addresses during that time period (a similar search today by Capt. David Flege returned the same results). After the search was over I had reported those findings to [Chief Norris], and informed [Chief Norris] that I would try to reach Mr. Henson by phone. Using the listed address on the request, I was unable to find a phone number to relay that information. I then sent to Mr. Henson through the regular mail a letter with our findings on this matter. I was unaware that Mr. Henson had not received the [response], and hope that this account will help you close this matter.
Absent objective evidence to the contrary, this office has no reason to question the veracity of the CFD or the accuracy of Mr. Chalk's account.
As long 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; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. A public agency such as the CFD obviously cannot produce for inspection 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 consistently 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 indicating that no responsive records exist as the CFD 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 access on this basis, 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. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a) , and this office is without authority to deviate from that statutory mandate. In other words, this office is not "empowered to go beyond the written record to determine whether public employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. 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 these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, 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 burden of proof, an agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075; 03-ORD-059; 00-ORD-120; 98-ORD-47; 97-ORD-17; 94-ORD-140. When, as is the case here, the agency denies that the records were ever created and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83; 99-ORD-108.
Because the record is devoid of evidence establishing that incidents occurred at the specified addresses necessitating CFD or EMS dispatches during the time frame provided, the position of the CFD that no reports were ever generated is entirely credible. Assuming that the CFD made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record confirms, the CFD fully complied with the Open Records Act, regardless of whether the search yielded any results, by notifying Mr. Henson that no responsive records were found. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. Because the CFD is necessarily unable to produce for inspection or copying records which do not exist, and has complied with the statutory mandate to notify Mr. Henson of that fact in writing, nothing more is required.
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.
Footnotes
Footnotes
1 Although Mr. Henson allegedly resubmitted his request on July 11, 2005, noticeably absent from the record is any objective evidence to verify the dates upon which his request(s) was mailed and/or received. On appeal, Chief Norris contends that the CFD did respond to Mr. Henson's request but does not specify when. As long recognized by this office, the Attorney General is unable to resolve factual disputes of this nature. 04-ORD-059, p. 3; 03-ORD-061; OAG 89-81. Accordingly, this office makes no finding with respect to the actual delivery and receipt of Mr. Farmer's request or the timeliness of the CFD's original response, the existence of which is in question, but reminds the CFD of its obligation to respond, in writing, within three business days to requests submitted pursuant to the Open Records Act. KRS 61.880(1).