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 Logan County Sheriff's Department violated the Kentucky Open Records Act in denying the request of Ricky Fulcher to receive, due to ongoing "criminal litigation, a copy "of any and all reports, notes, and [etc.] . . . concerning a subject that was shot at and robbed located [sic] at the Baptist Church, on Cave Springs Road Russellville, Kentucky on 7/24/01." Because the Department cannot produce for inspection or copying those records which do not exist or those which it does not possess, this office finds that no violation occurred. Having affirmatively indicated to Mr. Fulcher in a timely written response that no existing records in the possession of the Department are responsive to his request, and provided a credible explanation for the nonexistence of such records, the Department has complied with the Act; public agencies are not required to "prove a negative" as evidenced by 07-ORD-190.
On a standard form directed to Sheriff Wallace Whittaker on September 18, 2007, Mr. Fulcher submitted his request. By letter dated September 25, 2007, Sheriff Whittaker advised Mr. Fulcher that his office "does not have nor ever had [sic] any reports, etc. concerning that incident." As reflected by CAD Incident #2001-00018483, Sheriff Whittaker's deputies "were dispatched to the area to locate a subject that may have been robbed and or [sic] shot. No such person was ever located, so no report on our part was ever filed. I am aware that deputies from my [D]epartment assisted Officers of the Kentucky State Police." However, there is no "report, paperwork, or other forms [sic] my deputies would complete in assisting the State Police." In conclusion, Sheriff Whittaker explained that the only documentation which he possesses regarding this matter is the Incident Detail Report for CAD #2001-00018483, "which is maintained by the Logan County Central Dispatch, who [sic] can be reached at (270)726-4911." 1
By letter dated October 17, 2007, Mr. Fulcher initiated this appeal challenging the denial of his request. 2 Upon receiving notification of Mr. Fulcher's appeal from this office, Sheriff Whittaker supplemented his response, advising that "[a]ll records of this [D]epartment and all CAD's have been relayed or mailed back certified mail to Inmate #162201 Ricky Fulcher. There are no more records from this incident located or can be found [sic] from this [D]epartment. " However, the documentation forwarded to Mr. Fulcher "explained that the Kentucky State Police was also involved in this case." 3 Having explained why his agency does not possess any records concerning the specified investigation aside from those already provided, Sheriff Whittaker has discharged his duty under the Open Records Act.
In our view, the analysis contained in 07-ORD-190, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. 4 As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. Id., p. 6; 06-ORD-040. To clarify, the right of inspection attaches only if the records being sought 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. 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 a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the Department has twice asserted here. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought when KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records (or lack of possession, 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 in this case, a public agency denies having possession (or indicates that no such records exist), of the requested records, and the record supports, rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Assuming the Department made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as established by the record, the Department complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Fulcher that no additional records were located, and providing a credible explanation as to why any such records would be in the custody of a different agency. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. To hold otherwise would result in the Department "essentially hav[ing] to prove a negative" in order to refute Mr. Fulcher's claim that additional records not only exist, but are in the possession of the Department. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the Department's denial of Mr. Fulcher's request in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190.
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 Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." To the extent any records exist and the Department neglected to provide Mr. Fulcher with the name and the address for the official custodian of records at Logan County Central Dispatch, its response was deficient.
2 Mr. Fulcher simultaneously challenged the disposition of nearly identical requests which he submitted to the Auburn Police Department and the Russellville Police Department on September 18, 2007; this office reached the same conclusion in each of those separate but related appeals (07-ORD-244 and 07-ORD-245).
3 By letter dated September 10, 2007, Assistant Attorney General Amye Bensenhaver advised Mr. Fulcher of the requirements for perfecting an Open Records appeal codified at KRS 61.880(2)(a), in response to a letter dated August 30, 2007, in which he attempted to appeal from the denial by the KSP of his request dated May 4, 2006, for specified records concerning the incident in question. Included with his letter were attachments consisting of a request which the KSP received on August 20, 2007, the denial issued by the KSP on August 22, 2007, a letter from Roger Wright of the KSP directed to Ms. Bensenhaver on May 31, 2006, and the partial denial of his request by the KSP dated May 30, 2006. Although Mr. Fulcher lists KSP Post #3, located in Bowling Green, Kentucky, as one of the agencies which purportedly acted in violation of the Open Records Act, Mr. Fulcher did not include a copy of a written request and a written denial by the KSP with his letter of appeal; consequently, the KSP is not a party to this appeal nor is the propriety of its response(s) at issue.
4 Also attached is a copy of 07-ORD-188 (In re: Kurt Lowe/Environmental and Public Protection Cabinet) upon which this office partially relied in resolving the issues presented by the subsequent appeal (In re: Kurt Lowe/Kentucky Personnel Cabinet).