Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Maysville Police Department violated the Kentucky Open Records Act in denying Jason Mullikin's request for "sufficient records to determine all agencies or organizations that currently provide accreditation for the Maysville Police Department." Insofar as the MPD is neither currently accredited nor statutorily required to maintain "accreditation, " 1 the MPD discharged its duty under the Act in advising Mr. Milliken that no such records exist and ultimately providing a credible explanation for the nonexistence of same. Because the record on appeal suggests possible records management and retention issues relating to previously existing accreditation records, the loss or destruction of which has not been explained, the matter is hereby referred to the Kentucky Department for Libraries and Archives for additional inquiry as that agency deems warranted consistent with KRS 61.8715.
By undated letter, Mr. Mullikin requested access to the aforementioned records, noting that he would "also need to review records to determine names and contact information for all those individuals with said agencies or organizations who currently act to determine the department's fitness for continuing to receive accreditation (including, but not limited to field assessors)." In a letter dated May 9, 2008, Assistant Chief Ronald J. Rice denied Mr. Mullikin's request, advising that the City of Maysville Police Department "is not currently accredited with or through any agency"; therefore, no accreditation records exist. Raising a number of allegations which are not justiciable in this forum, 2 Mr. Mullikin initiated this appeal from the denial of his request.
Upon receiving notification of Mr. Mullikin's appeal from this office, M. Susan Brammer, City Attorney, responded on behalf of the MPD, initially advising that the "City of Maysville is not currently accredited through any agency." Although the MPD was previously accredited by the Kentucky Association of Chiefs of Police, "that accreditation has lapsed. Therefore, no records exist to send to Mr. Mullikin to determine all agencies or organizations that currently provide accreditation for the [MPD]." In conclusion, Ms. Brammer notes that the MPD "promptly responded to Mr. Mullikin that the records do not exist."
Although Mr. Mullikin's request is not dated, nor did the MPD specify the date upon which his request was received in responding to same, this office has no reason to question the City's assertion regarding the timeliness of its written response absent evidence to the contrary; thus, our analysis focuses on whether the ultimate disposition of Mr. Mullikin's request was substantively correct. Insofar as the MPD has now provided a credible explanation for the nonexistence of the records being sought, and the agency is necessarily unable to make nonexistent records available for inspection, this office finds that no violation of the Open Records Act occurred; however, the apparent loss or destruction of documentation relative to previous accreditation of the MPD by the KACP necessitates a referral to the KDLA in our view. Compare 05-ORD-108.
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 01-ORD-36; 99-ORD-198; 91-ORD-17; OAG 83-111. It stands to reason that the MPD cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights to inspect attaches only after the requested records 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. 3 In addressing the obligations of a public agency when denying access to public records based on their nonexistence, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has repeatedly held that 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 an agency discharges its duty under the Open Records Act by affirmatively so indicating as the MPD did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When a public agency denies the existence of records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. Rather, this office "is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." OAG 86-35, p. 5. To reiterate, our scope of review in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a) ; however, the analysis does not end there.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the records in dispute. 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). Although the MPD initially failed to offer any explanation for the nonexistence of the requested accreditation records, the MPD subsequently advised that its accreditation by the KACP (which is voluntary) has lapsed; it logically follows that no records which are responsive to Mr. Mullikin's request for access to "sufficient records to determine all agencies or organizations that currently provide accreditation" for the MPD exist.
When resolving a dispute under the Open Records Act, our analysis is generally confined to resolving only two questions: Whether the public agency possesses the documents requested, and if so, whether the documents are open for public inspection. Given the limited evidence of record, the undersigned counsel spoke with Michael W. Bischoff, Executive Director of the KCAP by telephone on June 7, 2008, in order to better understand the relevant accreditation process. According to Mr. Bischoff, the MPD was initially approved for accreditation at the Executive Board meeting held in January 2001; the accreditation was valid for five years meaning the MPD accreditation expired in January 2006. Both Mr. Bischoff and Walter A. Tangel, Department of Criminal Justice Training, have confirmed that the process is voluntary with the incentives being to ensure that your agency is following the best practices and to receive a reduction in the cost of insurance premiums from the Kentucky League of Cities. Because the MPD has affirmatively indicated to Mr. Mullikin in writing that no existing records are responsive to his request, and has provided a credible explanation for the nonexistence of current accreditation records in responding to his appeal, the Attorney General has no basis upon which to find a substantive violation of the Act. Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, relating to the management of public records.
Pursuant to KRS 61.8715, the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. 94-ORD-121, p. 8. In addressing the "essential relationship" between these chapters, the Attorney General has further observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10. In other words, "the key to records access is effective records management." Id., p. 10.
Given the statutorily recognized interrelationship between records management and records access, the inability of the MPD to produce records documenting accreditation, whether voluntary or mandatory, that expired as recently as January 2006 raises a question regarding the records management practices of the agency insofar as the records were apparently lost or destroyed yet no authority has been cited for such action. To satisfy its burden of proof under KRS 61.880(2)(c) a public agency must explain by what authority the records were destroyed. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. Although the record is devoid of any objective basis to suggest bad faith on the part of the MPD, the agency has not attempted to rebut this presumption.
Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and the Department for Libraries and Archives with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530. Of particular significance on the facts presented, the Commission exercised this authority in creating the Local Government General Records Retention Schedule, a review of which surprisingly does not reveal any reference to "accreditation" records. To clarify, the MPD may have been authorized to destroy the previously existing accreditation records; the question is whether the records were properly destroyed and if so, pursuant to what authority. Even assuming that accreditation records are unscheduled records, which the MPD has not claimed, they "should [have been] retained by the agency until a retention schedule is established for them." 04-ORD-040, p. 5; 07-ORD-182. Just as in 04-ORD-040, this appeal "presents the occasion for [the agency] to work with the [KDLA] to schedule these and other previously unscheduled records." Id. See 94-ORD-121. Accordingly, this office is obliged to refer the matter to the Department for Libraries and Archives in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted.
Ultimately, this office cannot afford Mr. Mullikin the relief he seeks; the Attorney General is not empowered to declare the inability of the MPD to produce nonexistent records a violation of the Open Records Act or to compel the MPD to maintain records for a specific period of time. Inasmuch as the latter prerogative resides with the KDLA and the Archives and Records Commission, the Attorney General respectfully defers to these entities on the issues raised.
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 Chapter 18 of the Police Chiefs Desk Reference, entitled Kentucky Resources forLaw Enforcement Professionals, describes the "Kentucky State Law Enforcement Accreditation Program" as follows:
The Kentucky Association of Chiefs of Police Accreditation Program is intended to provide law enforcement agencies of the [C]ommonwealth with an avenue for demonstrating that they meet commonly accepted standards for efficient and effective operations. The standards included in this program do not reflect the maximum or minimum amount that can be done by an agency in any one area.
Law enforcement executives who choose to have their agencies accredited under this program will have examined all aspects of their operations. They will have made conscious decisions about policies and procedures that fit the law enforcement requirements of their jurisdictions. They will have also implemented those policies and trained in their use.
Accreditation does not reflect that an accredited law enforcement agency provides better law enforcement services to its community than that of a non-accredited agency. What it does reflect is that the accredited agency has been carefully measured against an established set of standards and has met or exceeded accepted practices in law enforcement.
Id., p. 8. As evidenced by the foregoing, accreditation is both voluntary and refers to the agency itself as opposed to the mandatory certification issued to individual peace officers upon completion of training requirements under KRS Chapter 15.
2 As consistently recognized by this office, the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880[(2)(a)]." 99-ORD-121, p. 17. To the contrary, the role of the Attorney General in adjudicating a dispute under the Act is narrowly defined; this office is without authority to deviate from that statutory mandate.
3 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Consistent with OAG 78-231 and its progeny, the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2.