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 Auburn Police Department violated the Kentucky Open Records Act in denying the request of Ricky Fulcher to receive, due to ongoing "criminal litigation," a copy "of all documents concerning [an] incident that was investigated by [the] [D]epartment on 7/24/01; [sic] of [an] attempted shooting and robbery with said incident occurring on Cave Springs Road, at the Baptist Church, Russellville, Kentucky." 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.
In denying Mr. Fulcher's request, Chief Scott Harmon advised that his Department "did not have anything to do with your case, but serve[d] as a back[up] unit for other officers. We do not have any reports or citations concerning your case." Chief Harmon had "even spoken with retired Chief Lockhart and he stated to me that there was no written action taken by him or [anyone] in this [D]epartment at the time of your incident." 1 By letter dated October 17, 2007, Mr. Fulcher initiated this appeal from the denial of his request. 2
Upon receiving notification of Mr. Fulcher's appeal from this office, Chief Harmon responded on behalf of the Department, advising that on October 4, 2007, he "sent an inmate, a Ricky Fulcher[,] a typed letter from [his] [D]epartment stating that we had nothing to [do] with his pending litigation." Chief Harmon reiterated that he searched those records in the Department's custody, and spoke with retired Chief George Lockhart, before notifying Mr. Fulcher that his Department does not have any citations or "any written reports about Mr. Fulcher's incident." To the contrary, the Department "only served as a [backup] unit to the other agencies that responded to this incident." Consequently, "there are no records of Mr. Fulcher's incident at this [D]epartment. " In addition, 3 W. Currie Mulliken, City Attorney for the City of Auburn, Kentucky, reiterates the Department has "no records responsive to [Mr. Fulcher's] request" in a letter directed to this office via facsimile on October 29, 2007. Having explained why his agency does not possess any records concerning the specified investigation, Chief Harmon fulfilled the statutory obligations of the Department.
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.
Because 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 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 such 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 To his credit, Chief Harmon conducted a thorough search to confirm the nonexistence of the records; however, Chief Harmon's response is deficient insofar as he did not "furnish the name and location of the official custodian" for the custodial agency or agencies in accordance with KRS 61.872(4).
2 Mr. Fulcher simultaneously challenged the disposition of nearly identical requests which he submitted to the Logan County Sheriff's Department and the Russellville Police Department on September 18, 2007; this office reached the same conclusion in those separate but related appeals (07-ORD-243 and 07-ORD-245).
3 Contrary to Mr. Milliken's assertion that "neither the City of Auburn nor the past or current Police Chief for the Auburn Police Department should be parties to this appeal," Mr. Fulcher perfected his appeal with regard to Chief Harmon and the Department, in accordance with KRS 61.880(2)(a), by attaching a copy of his original written request to the Department as well as a copy of the Department's written response; nothing more is required for the Chief and the Department to be considered parties. To clarify, Mr. Milliken was notified in his capacity as legal counsel for the Department.
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).