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 Pike County Attorney violated the Kentucky Open Records Act in partially denying the request of Amy Mischler for a copy of various records relating to Case Nos. 01-CI-1197 and 02-D-00202-001 "and the criminal case the Pike County Attorney is prosecuting against [her]." Because a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess, nor can the Attorney General order the creation of records or resolve disputes concerning discrepancies between the records being sought and those provided, this office finds that the Pike County Attorney discharged his obligations under the Open Records Act by issuing a timely written response indicating that no additional records were located following an adequate search and providing a credible explanation for the nonexistence of such records. To the extent any records implicated by the request were compiled and maintained by the County Attorney and relate to criminal investigations or criminal litigation, those records are permanently exempt on the basis of KRS 61.878(1)(h).
By undated letter directed to Pike County Attorney Howard Keith Hall, Ms. Mischler submitted the aforementioned request; more specifically, Ms. Mischler requested the following records:
. A copy of an official Court record(s) which transfers jurisdiction from Pike County to Floyd County.
. A copy of my file in the Pike County Attorney[']s Office in which I requested child support prosecution in June of 2005.
. A copy of the work schedule of the Criminal Division employees on June 12, 2006.
. A copy of all documents in the [C]riminal [D]ivision concerning the prosecution of Amy Mischler.
On March 5, 2007 (request was received on March 1, 2007), Mr. Hall issued a timely written response advising Ms. Mischler as follows:
As to your first request, no such record exists in our office; however, the documents do reflect that our office sought and obtained the services of another attorney contracted by the [S]tate when you complained of the Child Support Division's handling of your case[;] such is included in the copied documents of your second request which has been completely copied and enclosed.
As to the third request, we do not have a detailed copy of the work schedule for June 12, 2006 as all [C]riminal [D]ivision employees were salaried at the time; however, a copy of the payroll certification is copied and enclosed.
As to your fourth request, our office retained no copy of charges against Amy Mischler. We usually prosecute our cases from the Circuit Court Clerk's records. You may wish to request the same from the investigating officer who charged you. We have enclosed copies of all computer records from our computer link to the Administrative Office of the Courts computer link available to us which make reference to Amy Mischler, civil and criminal, in the Pike Circuit Court Clerk's Office and elsewhere in Kentucky.
Noting that she has "recently received records which indicate that the Pike County Attorney does have records he has not turned over[,]" 1 Ms. Mischler initiated this appeal on April 3, 2007, focusing exclusively on the disposition of her fourth request. 2 According to Ms. Mischler, the County Attorney "typed up a false warrant" for her arrest in retaliation for the grievance that she filed against him in "early June 2006." Now, Mr. Hall "is stating he does not have the records, even though clearly such records should be found in his office."
Upon receiving notification of Ms. Mischler's appeal from this office, Mr. Hall reiterated that his office "simply did not retain any file in the criminal division for a felony case against her." Instead, his office "merely typed a warrant for a trooper at his request and handed the document to him. He apparently obtained the signature of a judicial officer and served the warrant." Apparently, Mr. Hall's assistant "did discuss the possibility of a settlement with the Public Defender's Office in or at court which may have included the proposed affidavit from Ms. Mischler's attorney" but Mr. Hall has "never seen an unsigned affidavit and only know[s] of it through informal discussion with [his] staff. " Mr. Hall indicates that he and his staff will try to "locate any proposed document in this case" but his office does "not have it." Nevertheless, Mr. Hall will ask his entire staff again "to see if they have informally retained any documents in this case." In closing, Mr. Hall notes that Ms. Mischler "is free to inspect our offices at any time except for private and personal areas."
To begin, the somewhat contentious nature of the relationship between the parties has no bearing on the outcome of this appeal; neither the identity of the requester nor his/her purpose in requesting access is relevant generally speaking. As consistently recognized by this office:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
93-ORD-15, p. 6; See also 05-ORD-099; 96-ORD-185. In other words, our review is confined to issues arising under the Open Records Act. 3
As long recognized by the Attorney General, a public agency is not required to honor a request for nonexistent records or those which the public agency does not possess. 04-ORD-036, p. 5. Likewise, this office cannot order a public agency to create records nor declare the failure to do so a violation or subversion of the intent of the Act. On these issues, 07-ORD-023, a copy of which is attached and incorporated by reference, is controlling. Assuming the County Attorney made "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" as reflected by the record, he cannot be said to have violated the Act in failing to produce all of the records in question. Id., p. 8 (citation omitted). See 05-ORD-108. To the extent Ms. Mischler is questioning the content of the records, such an issue is not justiciable in this forum; the Attorney General has consistently held that "'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.'" Id. (Citation omitted).
Although the County Attorney did not rely upon KRS 61.878(1)(h) as the basis for denying Ms. Mischler's fourth request, "all documents concerning the prosecution" of her case presumably constitute "records or information compiled and maintained by county attorneys . . . pertaining to criminal investigations or criminal litigation" which are permanently removed from application of the Act under the mandatory language of this exception. Whatever the rationale behind KRS 61.878(1)(h) may be, the protection it affords to such records "is absolute regardless of whether enforcement action is completed or a decision is made to take no action." 02-ORD-112, p. 2. Because the instant appeal presents no reason to depart from governing precedent relative to application of KRS 61.878(1)(h), the analysis contained in 04-ORD-153, a copy of which is attached hereto and incorporated by reference, is equally applicable here. Even if additional records matching the description provided currently existed and the County Attorney had custody, those records would be protected by KRS 61.878(1)(h), although the County Attorney would be required to satisfy his burden of proof in accordance with KRS 61.880(1) and 61.880(2)(c).
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 In addition to a "fax that was two pages long including the cover" sent by her former public defender to Mr. Hall on June 10, 2006, Ms. Mischler asserts that her former attorney "signed a motion to have Howard Keith Hall recused on July 6, 2006. The certificate of service states that the Pike County Attorney received a copy."
2 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 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. Consequently, any issues relative to records which have already been provided to Ms. Mischler are moot. In any event, Ms. Mischler challenges only the response to her fourth request on appeal.
3 In addressing factual disputes between arequester and a public agency, the Attorney General has likewise repeatedly observed:
This office cannot, with the information currently available, adjudicate a dispute regarding 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. It seems clear that you have permitted inspection of some records the requester has asked to inspect, and that copies of some records have been provided. 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; See also 03-ORD-204.