Request By:
Jerry Leon Nunn, Jr., # 104
Ed Brady
Steven R. Gold
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Henderson County Sheriff's Department violated the Kentucky Open Records Act in denying Jerry Leon Nunn's request for various investigatory records relating to an incident which occurred January 19, 2006. In accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005), and 07-ORD-190, this office affirms the denial of Mr. Nunn's request as to nonexistent records and those not in the possession of the agency. With regard to dispatch records in the custody of a different agency, the Department complied with KRS 61.872(4) by notifying Mr. Nunn and furnishing him with contact information for that agency.
By undated letter, a handwritten copy of which is attached to his appeal, Mr. Nunn requested a copy of the "dispatch call for the 19th day of January 2006 for the hours of 11:00 a.m. to 14:42 hrs. [sic]," the "caller[']s phone number that reported this incident 'vehicle in the ditch' at Hwy 283 and junction W.N. Royster Rd., Robards, Ky., Henderson County [sic]," the "results pertaining to 'portable breathal[y]zer test' that was administered" to him, and the "last 'calibration test' of said '[PBT].'" Mr. Nunn also requested a copy of the "evidence/tape from audio and video monitors from the patrol car of unit # 129 Henderson County Sheriff's Office Deputy Rick Lawrence [sic]" when he responded to a report of a disturbance in progress at Mrs. Kelly Nelson's residence, the "evidence/tape from audio and video monitors from the patrol car" of Deputy Chris Keller from when he was "at the scene of 'vehicle in the ditch' [sic]" on the same night, and a copy of the "evidence/tape from audio and video monitors" from Deputy Lawrence's patrol car relating to the latter incident. 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, Steven R. Gold, Henderson County Attorney, responded on behalf of the Department, initially advising that Sheriff Ed Brady has "no record of ever receiving any of the requests that Mr. Nunn attached to his appeal." If Sheriff Brady had received said requests, "they could very easily have been handled because all of the information requested is either not in the Sheriff's custody or does not exist at all." More specifically, Mr. Gold observed that items 1 and 2 of Mr. Nunn's request, which seek dispatch records, "would be in the possession of the Henderson Police Department (1990 Barrett Court, Henderson, KY 42420), as the Henderson County Sheriff is dispatched through said [D]epartment's 911 center. Any recordings of radio traffic would be in said agency's custody. " With regard to items 3 and 4 of Mr. Nunn's request, which seek information regarding the PBT, a "field testing instrument," it is Mr. Gold's understanding from Sheriff Brady that, "since the results of a PBT are generally not admissible in court, the results of said field tests are not retained to his knowledge." Similarly, items 5-7 of Mr. Nunn's request "each seek audio or video from 'monitors' within particular patrol cars. According to Sheriff Brady, there were no cameras or audio recorders in said patrol cars . . . but . . . he has recently received a grant to equip his vehicles with such equipment."
Although this office is unable to conclusively resolve any factual dispute concerning the actual delivery and receipt of Mr. Nunn's request, and therefore finds no violation of the Act in this regard, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. 04-ORD-036, p. 5. With regard to statutory obligations of a public agency when denying access due to nonexistence (or lack of possession) of the records, the analysis contained in 07-ORD-190 is controlling; a copy of that decision is attached hereto and incorporated by reference (along with a copy of 07-ORD-188 upon which the former decision was premised). Assuming the Department made "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" the agency cannot be said to have violated the Act in failing to produce records that are responsive to Mr. Nunn's request. 07-ORD-023, p. 8 (citation omitted). See 05-ORD-108. With regard to PBT results in particular, the Department advised that "since results of a PBT are generally not admissible in court," said results are not maintained by the Department "to [the Sheriff's] knowledge." Given the equivocal nature of the Department's response, this office consulted with Bobby Stokes, Traffic Safety Resource Prosecutor for the Prosecutors Advisory Council, and D.W. Eversole, Supervisor, Kentucky State Police Breath Alcohol Maintenance Program, both of whom confirmed that a PBT device merely produces a reading on a screen, which the officer may or may not record on the citation as either "pass" or "fail." 1 In other words, the Department's position that no such results exist is entirely credible.
Having affirmatively indicated to Mr. Nunn in writing that no records exist in the custody of the agency which are responsive to his request, provided a credible explanation for the lack of responsive documentation, and furnished him with contact information for the custodial agency relative to items 1-2 per KRS 61.872(4), the Department complied with the Act. To hold otherwise would result in the Department "essentially hav[ing] to prove a negative" in order to refute any claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the 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-190 and 07-ORD-188. 2
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 In contrast, results of the intoxilyzer test, which is performed at the Department if the individual is ultimately arrested, exist in hard copy form, and those records fall into Series No. L4681 of the Local Government General Records Retention Schedule , entitled "DUI Case File," which has a retention period of five years.
2 To the extent results of a "calibration test" are not included among the referenced information, and such records are generated to begin with but may be unscheduled records, the Department is required to maintain such records "until a retention schedule is established for them." 04-ORD-040, p. 5.