Request By:
Jerry Leon Nunn, # 104
Shiann N. Sharpe
Roger G. 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 Jerry Leon Nunn, Jr. for the various investigatory records. Because the agency does not possess any records which are responsive to Mr. Nunn's request, and has affirmatively indicated as much to him in a written response, providing a credible explanation for the lack of possession, and providing him with the name of the custodial agency in substantial compliance with KRS 61.872(4), its denial is affirmed. A public agency is not required to "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005).
More specifically, Mr. Nunn requested a copy of the dispatch call log from "11:00 hours til 14:42 hours [sic]" on January 19, 2006, a copy of the results from the portable breathalyzer test administered to him by Deputy Chris Keller of the Henderson County Sheriff's Department, a copy of the "last calibration test" of that device, a copy of the "evidence/tape from audio and video monitors from the pa[tr]ol car of Henderson County Sheriff[']s Deputy Rick Lawrence" on the same date from when he responded to a report "of a disturbance in progress at Mrs. Kelly Nelson's residence," and while he was "at the scene of a vehicle in the ditch belonging to Ms. Deane Scott" or Mr. Nunn, a copy of "evidence/tape from audio and video monitors from the patrol car" of Deputy Keller at the latter incident, and a copy of the dispatch call log showing the arrival time of Deputy Keller on that scene. By letter dated January 7, 2009, Shiann N. Sharpe, Official Custodian of Records, Legal Services Branch, responded to Mr. Nunn's request, advising that she is "not the Custodian of Records for the Henderson County Sheriff's Department." Accordingly, Ms. Sharpe suggested that for "documentation related to any arrest, investigation or response to this specific incident," Mr. Nunn should forward his request "to the proper authority for these records at the Henderson County Sheriff's Department." In conclusion, Ms. Sharpe correctly noted that in "a long line of Attorney General Opinions and Open Records Decisions, the Office of Attorney General has repeatedly held that a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have. [Citations omitted.]"
By letter dated January 12, 2009, Mr. Nunn initiated this appeal, requesting assistance in obtaining the "necessary paperwork to support" his case, # 06-CR-00091, and questioning why there are "so many discrepancies allowed by individuals that handle this type of detail on a daily basis." Upon receiving notification of Mr. Nunn's appeal from this office, Roger G. Wright, Assistant General Counsel, responded on behalf of the KSP, reiterating that "KSP does not have records created and maintained by another agency." Because the KSP is unable to "allow inspection of documents that do not exist" or those which are not in the custody of the agency, the KSP denied Mr. Nunn's request. According to Mr. Wright, numerous prior decisions "overwhelmingly support this critical concept." Therefore, the KSP asks the Attorney General to affirm its denial.
In our view, the analysis contained in 07-ORD-190 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. 1 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 KSP 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 after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies 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 that any such records exist or are in the agency's possession, 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 in these decisions, the record on appeal is devoid of evidence to raise the issue of good faith; rather, the KSP's explanation for the lack of responsive documentation is entirely credible. However, the analysis does not end there.
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. " Here, the KSP affirmatively indicated that it does not possess or maintain the records being sought, and briefly explained why any such records would be in the custody of the Henderson County Sheriff's Department in substantial compliance with KRS 61.872(4); however, the KSP did not provide Mr. Nunn with contact information for the official custodian of that agency's public records. To this limited extent, the responses of the KSP were deficient.
Having explained to Mr. Nunn that none of the records in dispute were created by the KSP, nor does the KSP maintain any such records inasmuch as the KSP was not the investigating agency, the KSP otherwise discharged its duty under the Open Records Act. 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 KSP "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the KSP's denial of Mr. Nunn'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. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3.
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 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).