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 Department of Public Advocacy violated the Kentucky Open Records Act in partially denying the request of Marvin Phipps for a copy of "any and all" records concerning a specific juvenile (three categories), "any and all" letters received from the Commonwealth's Attorney's Office, and "any and all" files generated by the DPA investigator assigned to his case. With regard to records which the DPA has already provided to Mr. Phipps, any related issues are moot; this office must therefore decline to issue a decision concerning those records in accordance with 40 KAR 1:030, Section 6. Because the DPA does not possess any records which are responsive to Mr. Phipps' request, aside from those already provided, the DPA ultimately discharged its duty under the Open Records Act in affirmatively indicating as much to Mr. Phipps in a written response; a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess.
By letter directed to Assistant Public Advocate Susanne McCollough on October 25, 2006, Mr. Phipps requested the specified records concerning Case Number 03-CR-0062; Ms. McCullough provided Mr. Phipps with a copy of "ALL that I found in the file in response to your requests." Observing that Ms. McCollough had provided DNA results concerning the specified juvenile but did not honor the remainder of his request, Mr. Phipps initiated this appeal by letter dated November 20, 2006.
Upon receiving notification of Mr. Phipps' appeal from this office, Margaret F. Case, General Counsel, responded on behalf of the DPA. According to Ms. Case, investigation of the circumstances surrounding Mr. Phipps' request demonstrated the following:
On November 6, 2006, Hon. Susanne McCollough, of Danville DPA, sent Mr. Phipps a copy of DNA records on [B.W.], erroneously believing that these records were the only ones that fit Mr. Phipps' request.
When Ms. McCollough received your "Notification" concerning the appeal, she looked again and saw that her file on Mr. Phipps' case did in fact contain documents he had requested in Paragraphs 4 and 5 of his letter to her. On December 1, 2006, she sent those additional documents to Mr. Phipps via FedEx, for delivery on December 2. Her cover letter to him is attached.
Nevertheless, DPA has still found no records concerning [B.W.'s] pregnancy or suicide attempt. DPA can do nothing but deny Mr. Phipps' request for such records, on grounds that such records do not exist within DPA.
In Ms. Case's view, this appeal is rendered moot per 40 KAR 1:030 Section 6 "by the supplying of the requested records." 1 As explained below, Ms. Case is partially correct in this assertion.
Pursuant to 40 KAR 1:030, Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office assumes that Mr. Phipps has received a copy of any existing records which are responsive to Items 1, 4, and 5 of his request; any issues relative to those records are therefore moot. Accordingly, this office must decline to issue a decision on the merits concerning those records. In light of this determination, the remaining question is whether the DPA violated the Open Records Act in denying Mr. Phipps' request as to records "which do not exist within DPA."
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or those which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as the DPA obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right of inspection 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 that an 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." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has consistently 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 (or are in the custody of the agency) as the DPA 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. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. 2 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); this office is without authority to deviate from that statutory mandate. 3
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 the burden of proof imposed by KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist), of the requested records, 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.
Because the DPA made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, the DPA complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Phipps that no further responsive records were found, and providing a credible explanation as to why. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. 4
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 Enclosed with Ms. Case's response is a copy of a letter directed to Mr. Phipps on December 1, 2006, by Ms. McCollough in which she advised him as follows:
Enclosed are 1) copy of envelope addressed to Melinda Kates 2) pgs. of letter 3) memo from investigator at [our] office [4)] e-mail from investigator to me [5)] e-mail on info on William Smith to go your bond. [sic]
To the best of my recollection, the letter you wrote from the jail was turned over to the Commonwealth by the recipient and given to me in Discovery.
I do not have any records regarding [B.W.'s] pregnancy or any suicide attempt by her.
2 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.
3 [ILLEGIBLE FOOTNOTE]
4 Pursuant to KRS 61.872(4): "If the person to whom the application if directed does not have custody or control of the public record requested, that person shall notify the applicant and furnish the name and location of the official custodian of the agency's public records. "