Request By:
Ricky Fulcher, # 162001Chief Barry Dill
104 S.W. Park Square
Russellville, KY 42276Bob Hedges
Russellville City Attorney
157 W. 5th Street
P.O. Box 335
Russellville, KY 42276-0335
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 Russellville 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 any and all reports, notes and evidence concerning an investigation that was made by [Officer Craig Phillips] on 7/24/01 in Russellville, Kentucky pertaining to a party shot and robbed at the Baptist Church located on Cave Springs Road, 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 written response that no existing records in the possession of the Department or the named officer 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. See 07-ORD-243; 07-ORD-244.
Having received no response to his written request dated September 18, 2007, Mr. Fulcher initiated this appeal by letter dated October 17, 2007. 1 Upon receiving notification of Mr. Fulcher's appeal from this office, Chief Barry Dill sent a response directly to Mr. Fulcher on behalf of the Department, a copy of which he forwarded to the undersigned counsel. Reiterating his previous response, Chief Dill advised Mr. Fulcher that "the information that you request is not in the custody of this agency or of Officer Phillips. It appears (from the copy of the CAD that was forwarded to me by you) that two officers with the Logan County [Sheriff's Department] responded to the incident." As explained by Chief Dill, "[n]ear the bottom of page one on the CAD it states '714 AND 710 1098 CODE 35 to KSP[,' which] means that the Sheriff's Deputies turned the incident over to the Kentucky State Police." 2 Substantially complying with KRS 61.872(4), Chief Dill then recommended that Mr. Fulcher contact the Kentucky State Police Post in Bowling Green, Kentucky, if he is unable to retrieve the records from the Logan County Sheriff's Office and Sheriff Wallace Whittaker. Although Chief Dill "would be glad" to provide Mr. Fulcher with "information, notes, reports, or anything we possess that pertains to" his case if his Department actually possessed those documents, Mr. Fulcher is filing his request "with the wrong agency." Having explained why neither Officer Phillips nor his agency would have any records concerning the specified investigation, Chief Dill 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. 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 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. As established by the record on appeal, both here and in 06-ORD-143, a copy of which is attached hereto and incorporated by reference, the Department simply did not generate any records concerning the incident in question. Because the instant appeal presents no reason to depart from this governing precedent, the same result necessarily follows.
Regardless of whether Mr. Fulcher is persuaded by the Department's response, the Department complied with the Open Records Act in advising 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; nothing more is required. 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-190 and 07-ORD-188. To the extent Mr. Fulcher is requesting an investigation of this entire matter, the Attorney General is not authorized to afford such relief under the Open Records Act.
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 Mr. Fulcher simultaneously challenged the disposition of nearly identical requests which he submitted to the Logan County Sheriff's Department and the Auburn Police Department on September 18, 2007; this office reached the same conclusion in those separate but related appeals (07-ORD-243 and 07-ORD-244).
Although the Department is not required to honor duplicative requests per 95-ORD-47 and OAG 92-91, the Department was required to issue a written response within three business days in accordance with KRS 61.880(1). To the extent the Department initially failed to comply with KRS 61.880(1), its response was procedurally deficient.
2 A review of the CAD, a copy of which is attached to Mr. Fulcher's letter of appeal, validates Chief Hill's assertion.