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 Madisonville Police Department violated the Kentucky Open Records Act in denying the request of John Yarbrough for "records that would show the activities of all Hopkins County Sheriff Deputies for October, November and December 2000[,]" including "all records pertaining to Wal-Mart during this same period[,]" and "all records pertaining to Jason Scott Bean, Troy Bruce, Kennith Ray Campbell, Ron Moore, John McConnell, L.P. Jones, Elaine Yeager and Sharon Wyatt Bean Bruce as well as Ronald C. Bruce during this period." From a procedural standpoint, this office is unable to conclusively resolve the factual issue concerning delivery and receipt of Mr. Yarbrough's request; however, the MPD cannot produce for inspection or copying records which do not exist or those which it does not possess, nor is the MPD obligated to compile a list or create a record in order to satisfy a request. Because the record is devoid of evidence documenting the steps taken by the MPD to identify and locate documents containing the information requested, this office cannot assess whether the search was adequate under the standard articulated in 95-ORD-96; the record in 07-ORD-007 suggests that such documents may exist. 1 In order to satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), the MPD must either release any nonexempt records which are potentially responsive to Mr. Yarbrough's request, assuming that any exist, provide a statutory basis for denying access (in whole or in part), or confirm that no such records exist after detailing the methodology employed in conducting a search and providing a credible explanation for the absence of such records.
In a letter allegedly directed to "Madisonville Police Central Dispatch" on November 10, 2006, Mr. Yarbrough requested the specified records. Having received no response, Mr. Yarbrough initiated this appeal 2 by letter dated December 8, 2006, clarifying that records he is requesting "involve Scott Bean[,] the princip[al] thief in an admitted $ 8,200 theft from Wal-[M]art that sources say was more like $ 20,000 plus, whose charge was lowered to shoplifting under $ 300." As explained by Mr. Yarbrough, Scott Bean "is the brother of Deputy Shawn Bean and was a juror in my false DUI trial. The investigation was handled by Deputy Elaine Yeager." 3 Although Mr. Yarbrough received a "prompt response" to his request of November 6, 2006, from Sheriff Frank Latham, of the Hopkins County Sheriff's Department, including "court records" which Mr. Yarbrough "had already" received, Sheriff Latham wasn't "clear that he had supplied all documents in his possession and he never mentioned the request for records 'such as time cards' for his Deputies. " Accordingly, Mr. Yarbrough sent a request "for similar records to Madisonville P.D. Central Dispatch," the lack of response to which prompted this appeal.
Upon receiving notification of Mr. Yarbrough's appeal from this office, Joe E. Evans, III, Madisonville City Attorney, responded on behalf of the MPD. As explained by Mr. Evans:
Prior to receipt of the Notice of Appeal, neither Gina Munger, Madisonville City Clerk and official custodian of City of Madisonville Records, nor the undersigned City Attorney were aware of the open records request allegedly submitted by Mr. Yarbrough. Mr. Yarbrough alleges that he faxed the open records request to Madisonville Police Chief Bobby Johnson. Chief Johnson has been on medical leave and has not been at work in excess of seven (7) weeks. Upon receipt of the Notice of Appeal, the undersigned attorney contacted the Madisonville Police Department to inquire as to the status of the open records request. Captain Chuck Shockley advised the undersigned attorney in writing by letter dated December 19, 2006 that the Madisonville Police Department was unable to find any record of receipt of an open records request from John Yarbrough dated November 10, 2006. The City of Madisonville did not willfully ignore the open records request or ignore the time limitations for responding as set forth in KRS 61.880(1) .
The request submitted by Mr. Yarbrough is a request for research to be performed rather than for inspection of reasonably identified public records. The request is not a request for readily identifiable or specifically described public documents, but rather is a request for information to be extracted and compiled from public records.
The requested information is not maintained by the City of Madisonville in the form or format requested and no public records currently exist that are responsive to Mr. Yarbrough's request.
In our view, neither the limited evidence of record nor independent research validates this assertion.
In addressing factual disputes between a requester and a public agency of the nature presented, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. . . . Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; 05-ORD-033. Likewise, the record on appeal does not contain sufficient evidence concerning the actual receipt and delivery of Mr. Yarbrough's request for this office to conclusively resolve the related factual discrepancy. Because the MPD responded in a timely fashion upon receiving the copy of Mr. Yarbrough's request which accompanied the notification of appeal issued by this office, further discussion of this procedural issue is unnecessary; we make no finding in this regard.
Turning to the substantive issues presented, this office disagrees with Mr. Evan's characterization of Mr. Yarbrough's request as to records documenting the activities of the Deputies, and/or the Wal-Mart investigation (subsumed by the former to some degree), in light of the narrow time frame involved. 4 However, the request for all records pertaining to named individuals, the identities of which are not specified, is not properly framed. To hold otherwise would contravene governing precedent such as 06-ORD-126 and 04-ORD-090, copies of which are attached hereto and incorporated by reference; a public agency is not obligated to honor a request for information as opposed to a request for existing public records, but is required to provide the requester with an opportunity to inspect any nonexempt records which may be responsive. Because the heart of this controversy stems from the seemingly conflicting assertion by the MPD (without elaboration) that potentially responsive records do not exist, this now becomes our focus.
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist or those which it does not possess. 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. It stands to reason that the MPD cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights 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. 5 In addressing the obligations of a public agency when 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 consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively so indicating as MPD 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 multiple 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 a public agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute." 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); this office is without authority to deviate from that mandate.
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.
To satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records at a minimum; the MPD has not offered any explanation for the complete absence of records containing the information requested. 6 Also noticeably lacking from the response of the MPD is any indication that a proper search was conducted prior to reaching this conclusion. Compare 05-ORD-108 (specified dispatchers whose records were requested were not full-time public employees, and, therefore, did not qualify as "law enforcement telecommunicators" as required to trigger application of KRS 15.550 and KRS 15.560 meaning that 911 Dispatch would not have copies of records documenting their completion of the requisite training); 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); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with the applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 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 investigation not in sheriff's custody because sheriff did not conduct the investigation).
In 95-ORD-96, this office articulated the following standard by which to judge the adequacy of a search for public records:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records ," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight ." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id. at p. 7.
Although the MPD cannot produce for inspection or copying records which do not exist, nor is the MPD statutorily obligated to compile a list or create a record, the limited evidence on appeal does not reflect the MPD made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the requested records." While this office does not speculate regarding the records management procedures adopted by the MPD, nor is there any evidence of bad faith, it stands to reason that a mechanism exists by which the MPD Records Custodian can identify and locate records of a limited class, namely, those documenting the activities of a presumably small number of deputies for the limited time frame provided relative to a specified investigation; independent research (telephone conversation with Sheriff Latham and written response of his agency in related appeal) has confirmed that such records generally exist (Records Retention Schedule) and, that if any such records exist in this case, the MPD would have custody. In other words, there is "reason to believe that the supposed documents could be located without an unreasonably burdensome search." Because the MPD relies exclusively upon the unsupported assertion that "no public records exist that are responsive to Mr. Yarbrough's request[,]" this office is unable to assess whether the methodology employed by the MPD was adequate. Having failed to substantiate that a good faith effort was made to identify and locate the records at issue, the MPD failed to satisfy its burden of proof under the Open Records Act. See 02-ORD-120; 01-ORD-81; 01-ORD-56. 7
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 At issue in 07-ORD-007 was a request "that would show the activities of all Hopkins County Sheriff Deputies (such as what are called time cards) for Oct., Nov., and Dec. 2000." More specifically, Mr. Yarbrough requested that Sheriff Frank Latham of the Hopkins County Sheriff's Department include "any records that pertain to the [Wal-Mart] theft investigated by Dep. E. Yeager that involved Dep. Shawn Bean's brother Scott Bean who[] pleaded guilty to theft of $ 8,200 in groceries and merchandise but the charge was lowered to shoplifting less tha[n] $ 300."
2 Mr. Yarbrough simultaneously appealed from the disposition of the related but separate request submitted to Sheriff Latham; 07-ORD-007 is the decision issued by this office in that matter. Of particular relevance here, Sheriff Latham, in responding to Mr. Yarbrough's appeal on January 5, 2007, complied with KRS 61.872(4) by advising him that such a request "would cover several grounds such as time cards for compensation and/or time cards for service. My office does not maintain such a document as a time card. The time cards for request of service are handled by the Madisonville Dispatch Center." (Emphasis Supplied). Absent evidence to the contrary, this office must assume that records which are potentially responsive to Mr. Yarbrough's request would be in the custody of the MPD.
3 On January 10, 2007, the undersigned was prompted by the paucity of evidence presented to contact Sheriff Latham via telephone for guidance and general insight regarding the factual background of this appeal as well as context regarding the records maintained by the HCSD and MPD, respectively, sharing of information between those agencies, etc. During that conversation, the undersigned learned, among other useful information, that Deputy Yeager is no longer an employee of the HCSD. Most importantly, Sheriff Latham confirmed that records of the kind at issue (Daily Detain Assignment Record and/or Officer's Daily Activity Report according to Local Governments Records Retention Schedule, Public Safety, Law Enforcement) , if any exist, would be maintained by the MPD.
4 In our view, 04-ORD-028 (pp. 8-13) is controlling on this issue.
5 As long held by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See also 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
6 Such records may have properly been destroyed under the applicable Records Retention Schedule established by the State Archives and Records Commission, Public Records Division, Kentucky Department for Libraries and Archives. More specifically, the MPD may be charged with maintaining some, if not all, of those records governed by the previously referenced section of the Local Government General Records Retention Schedule found at U1 and/or U2; Sheriff Latham has confirmed as much. In relevant part, the Disposition Instructions mandate destruction of the following records after two years and one year, respectively:
Series No. Record Title and Description
L4657 Daily Detail Assignment Record (Sheet) (A.K.A. Work Schedule. This Records series documents the daily assignments of law enforcement officers and is used to verify the location of officers at a particular time on a particular date). (V)
L4658 Officer's Daily Activity Report (This record series is submitted by each law enforcement officer for the purpose of documenting all official duties during a given day. All officers from every unit and section submit these which become a part of the Monthly Activity Report).
As interpreted by this office, Mr. Yarbrough's request would encompass records like those described. However, the MPD has not indicated whether any such records do not currently exist because those records were properly destroyed in accordance with applicable Disposition Instructions; the record is impermissibly silent on this issue. Accordingly, the undersigned consulted Jerry Carlton, Manager, Local Records Program, KDLA, via electronic mail on January 10, 2007. Having searched records dating back to 2003, Mr. Carlton did not locate any destruction certificate for the MPD, but did find two submitted by the HCSD on November 3, 2006, which contain activity reports for the year 2000. While not conclusive, this insight further supports the position that records like those requested, if ever in existence, were not been properly destroyed.
7 To clarify, the fact Mr. Yarbrough may already have received copies of the same records from the HCSD or another public agency does not relieve the MPD of its duty to provide him with access to any of those records also in its possession. 04-ORD-059, p. 6; 00-ORD-16, p. 4. On several occasions, the Attorney General has rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." 00-ORD-16, p. 4, citing 99-ORD-121, p. 10. Only through full disclosure of an agency's records can a requester satisfy himself that the record is complete. Id. As consistently recognized by this office, "a public agency cannot withhold public records from a requester simply because the records may be obtained from another source." 97-ORD-87, p. 4, citing OAG 90-71. See also 06-ORD-218.