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 Ashland Police Department violated the Kentucky Open Records Act in the disposition of Wayne Eplion's request for specified records and information relating to "Patrolman Terry Clark (Badge 1450)." Although the APD initially failed to either produce any existing nonexempt records which are responsive to Mr. Eplion's request within three business days, as contemplated by KRS 61.880(1), or give a detailed explanation of the cause for delay and the date certain on which the records would be available, in accordance with KRS 61.872(5), the APD ultimately provided Mr. Eplion with a copy of any existing records which are responsive to his request; nothing more is required. In sum, the initial response of the APD was procedurally deficient; however, the APD cannot produce for inspection or copying nonexistent records or those which it does not possess, nor is the APD statutorily required to compile information or create a record to satisfy a request. To clarify, this office is not empowered to resolve disputes concerning discrepancies between the records being sought and those provided.
By letter dated December 13, 2006, Mr. Eplion requested the following relative to Officer Clark:
-Education and training in the fields of Information Technolog[y], Microprocess[o]r Technolog[y], Computer Software, Forensic Science or Investigations, as well as any related fields.
-All technical qualifications/proficiencies related to the above specified fields.
-Curriculum vitae.
-Certifications and accreditations.
-Testimonial experience, especially in the above specified fields.
-Work experience.
-Inciden[t] reports pertaining to [wrongdoing] or improper conduct.
-Disciplinary actions.
In a letter dated December 22, 2006, Kevin P. Sinnette, Assistant Corporation Counsel, responded on behalf of the APD/City of Ashland, advising Mr. Eplion that his request postmarked December 19, 2006, was received by the Legal Department on December 20, 2006, and the City was "in the process of preparing the requested items." As further observed by Mr. Sinnette, the "items requested are voluminous in nature and will be forwarded to you as soon as they are copied."
Having received no records from the APD, Mr. Eplion initiated this appeal by letter dated January 5, 2007. Upon receiving notification of Mr. Eplion's appeal from this office, Mr. Sinnette supplemented his response on behalf of the APD, enclosing "[c]opies of all education, training, certifications and accreditations" for Mr. Clark. As for "Testimonial experience," Mr. Sinnette denied Mr. Eplion's request because the City "does not possess that information and public agencies are not required to compile information or create a record to satisfy an open records request." 1 In addition, the APD was unable to honor the request as to "Incident reports" and "Disciplinary actions" since there "have been no incidences of [wrongdoing], improper conduct or disciplinary actions against Officer Clark."
As a public agency, the APD must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the Records Management Section's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). Noticeably absent from the initial response of the APD, are both of these mandatory elements. To this extent, the APD violated KRS 61.872(5). See 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection" ).
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, as is the case here, the agency must " immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, " unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5) (Emphasis added); 02-ORD-165. In other words, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. 01-ORD-38, p. 5 (Emphasis added). To avoid future violations of this nature, the APD should be guided in responding to requests by the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9.
Turning to the substantive issue presented, this office finds that any issues relative to Items 1-4 and 6 of Mr. Eplion's request are moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. 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 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. On appeal, the APD asserts that a copy of all records containing the information requested in Items 1-4 and 6 has been forwarded to Mr. Eplion and that no records exist which are responsive to Items 7-8. Upon receipt of the response issued by Mr. Sinnette on behalf of the APD, Mr. Eplion focuses exclusively upon the denial of his request as to Item 5 ("Testimonial experience"). Absent evidence to the contrary, this office assumes that Mr. Eplion has now received a copy of any existing record which is otherwise potentially responsive to his request; consequently, this office must decline to issue a decision concerning same in accordance with 40 KAR 1:030, Section 6. In light of this determination, the remaining question is whether the APD erred in denying access to Items 7-8 because such records apparently do not exist.
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. It stands to reason that the APD cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights 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. 2 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 repeatedly 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 APD 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 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" 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(1); this office is without authority to deviate from that statute.
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 under KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records 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); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with 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). Under circumstances like those presented, further inquiry is not warranted in the absence of contrary evidence. As in the cited decisions, the record is devoid of evidence to raise the issue of good faith; the position of the APD is credible insofar as no reports would be generated if Officer Clark has not been the subject of a disciplinary action.
Assuming the APD made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record indicates, the APD cannot be said to have violated the Act in this regard. 05-ORD-109, p. 3. To the extent Mr. Eplion is questioning the content of the records, such an issue is not justiciable in this forum; the Attorney General has long recognized that "questions relating to the verifiability, authenticity, or validity or records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 04-OMD-182 (questions regarding the authenticity of an agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records; the Attorney General refused to consider this issue). As in the cited decisions, this office finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal and, therefore, declines to assign error on this basis. If Mr. Eplion has evidence the APD willfully concealed more accurate or current records, he may wish to consider the options available under KRS 61.991(2)(a); the record on appeal is devoid of such evidence.
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.
Wayne Eplion, # 161020
Robert RatliffActing Chief of PoliceAshland Police DepartmentP.O. Box 1684Ashland, KY 41105
Kevin P. SinnetteAssistant Corporate CounselCity of AshlandP.O. Box 1839Ashland, KY 41105-1839
Footnotes
Footnotes
1 To the extent Mr. Eplion has requested information, rather than existing public records, governing precedent supports the position of the APD; the analysis found at pp. 10-13 in 06-ORD-096 is controlling on this issue. While Mr. Eplion subsequently challenged this characterization in a letter dated February 1, 2007, arguing that "information sought is contained within the Officer's 'Employee Timesheets,'" his original request for "Testimonial experience" was open to interpretation. If Mr. Eplion intended to encompass timesheets with his request, he should have so indicated expressly; Mr. Eplion may wish to submit a new request for such records if the records already produced lack some of the information being sought. To clarify, Mr. Eplion is correct in asserting that records of this kind, "as well as the position and work station of public employees," are generally subject to inspection (as evidenced by a line of decisions including 04-ORD-141).
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2 As consistently emphasized 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 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.
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