Request By:
Donald Ray Hall, # 153862
David Adams
Mary Ann Scott
Roger Wright
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of Donald Ray Hall for "a copy of any document relating to a 911 call made between the hours of 6:[00] p.m. [M]ay 27[, 2000] and 6:[00] a.m. [M]ay 28, 2000" that originated "from the Fleming-Neon area Letcher [C]ounty, [K]y." from one of two specified telephone numbers. Mr. Hall also requested a copy of the recording of a call "made from the same area on June 18, 2000 between 5[:00] and 6:00 a.m. from" a specified telephone number. Because the records in question were apparently destroyed in the normal course of business under the applicable records retention schedule requirements, the KSP is necessarily unable to grant Mr. Hall's request; a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess.
In a timely written response, KSP Official Custodian of Records, Mary Ann Scott, denied Mr. Hall's request, noting that her office had previously advised him that "communication log repo[r]ts from years prior to 2005 have been purged from the agency's records and are no longer available due to Kentucky State Police retention schedules that were in existence at the time of this report. As such, this report is no longer in existence and cannot be provided to you." Citing a line of prior decisions issued by this office, Ms. Scott correctly observed that the Attorney General "has repeatedly held that a request for nonexistent record[s] cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have."
By letter dated May 30, 2008, Mr. Hall initiated this appeal challenging the denial of his request by the KSP , yet focusing primarily on the disposition of a nearly identical request by the Letcher County Sheriff's Office , dealt with conclusively in 08-ORD-059 and 08-ORD-124 (copies attached). More specifically, Mr. Hall questions why the Sheriff advised him to contact Communications Supervisor David Adams at KSP Post 13 regarding the 911 call in question and, in "direct conflict with Sheriff Webb's information," Ms. Scott indicated that any such records are no longer available; his position is that one of the two agencies "does, in fact have possession of the documents" requested, or "Sheriff Webb has made a false statement in his response." In any event, our analysis necessarily focuses on the actions of the KSP relative to Mr. Hall's request dated April 25, 2008; nothing more, nothing less.
Upon receiving notification of Mr. Hall's appeal from this office, Lieutenant Scott Miller responded on behalf of the KSP, advising that "the records retention schedule for communication logs and audio recordings is currently 2 years." 1 Attached to Lt. Miller's response is a copy of the relevant page from the State Agency Records Retention Schedule for Justice and Public Safety, State Police, East, Central, West Command Branches, Regional Posts 1-16; an asterisk is beside Series No. 00151, "Radio Log, " which "documents a record of all calls to respective State Police Posts for service to citizens or assistance that are received." Series No. 00151 has a retention period of two years and the disposition instructions mandate destruction at the end of that period.
In addition, Lt. Miller advises that "all recording devices at Post 13 were replaced in 2004 and records prior to that time were purged. Consequently, all records prior to 2005 have been purged in compliance with the records retention schedule." 2 Nevertheless, the KSP "has conducted a thorough good faith search for any records that may be responsive to Mr. Hall's request; no records pertaining to this incident were found." Citing a line of prior decisions, Lt. Miller reiterates that the Attorney General has consistently held that a public agency cannot honor a request for a nonexistent record inasmuch as a public agency "cannot furnish access to a record that it does not have." In conclusion, Lt. Miller notes that "Post 13 Communication Supervisor Adams has no recollection of any conversation with the Letcher County Sheriff's Department pertaining to this matter. It is believed that any conversation that may have taken place would have been a generic discussion of the records retention schedule." According to Lt. Miller, Supervisor Adams "has never given any indication to any party that the records Mr. Hall is seeking to obtain remain in existence." 3 Based upon the foregoing, Lt. Miller believes the response of the KSP should be upheld; this office agrees based upon governing precedents. 4
In our view, the analysis contained in 05-ORD-033 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. Although 05-ORD-033 involved a different agency and records retention schedule, the record at issue was a recording of a 911 call and the reasoning found at pp. 4-6 is equally applicable. As long recognized by the Attorney General, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. 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 as the KSP has asserted here. In general, it is not "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-136, p. 2. Rather, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records; this office is without authority to deviate from that statutory mandate.
That being said, 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 at a minimum. When, as in this case, a public agency denies the existence of the 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. Whatever negative inferences he may draw from the actions of the KSP, its response to Mr. Hall's request was consistent with the provisions of the Act insofar as it cannot make available for inspection records which no longer exist and the records at issue were destroyed in the normal course of business under the applicable records retention schedule requirements. Having affirmatively indicated to Mr. Hall in writing that no communication logs or audio recordings matching the description provided currently exist after conducting a search in good faith, and offered a credible explanation for the nonexistence of such records, the KSP discharged its duty 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 Although Series No. 00151 expressly includes only the radio or "communication" logs, and logs cannot be equated to audio recordings, the KSP cites only this series in support of its position; however, a representative from the Kentucky Department of Libraries and Archives confirmed upon verbal inquiry by the undersigned counsel there is not currently a separate category for such recordings on the applicable retention schedule and in spite of the ambiguous language, Series No. 00151 arguably encompasses both, which presumably explains the KSP treating them as one and the same.
2 Insofar as the KSP do not cite any specific authority to justify this position, and the retention period upon which the KSP apparently relied was two years, purging all of the records prior to 2005 when the device was replaced in 2004 was not authorized; however, the records at issue would have been generated in 2000 and therefore would not still exist regardless.
3 Because the record on appeal is devoid of any objective proof to refute this assertion or any basis upon which to question Lt. Miller's veracity, this office finds the agency's explanation credible but makes no finding in this regard; factual disputes are not justiciable in this forum.
4 By letter dated June 5, 2008, Mr. Hall supplemented his appeal, raising various allegations concerning the Letcher County Sheriff, none of which have any relevance in this appeal. Contrary to Mr. Hall's assertion, this office is not empowered "to investigate and prosecute" in the context of an Open Records appeal; his recourse lies in the courts. See 08-ORD-124.