Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy ("DPA") violated the Open Records Act in the disposition of Ricky Brock's January 21, 2009, 1 request for a copy of a toxicology report. For the reasons that follow, we find that DPA did not substantively violate the Act.
In his request addressed to Assistant Public Advocate Cotha L. Hudson in Pineville, Kentucky, Mr. Brock stated the following:
I need a copy of The Toxicology Report ordered by the Ky. State Police on me during my arrest date. This report is in my case file That you have on me. If you do not respond in a Timely manor [ sic ] I will appeal said request to the A.G.
Having received no response, Mr. Brock initiated this appeal on March 2, 2009.
In DPA's response to this appeal, submitted March 12, 2009, General Counsel Mary Ann Palmer states as follows:
The Department of Public Advocacy hereby responds to the open records appeal filed by Ricky Brock, by stating that Ms. Hudson does not work in the office where the records request was sent. Office staff does not recall seeing the request. Nonetheless, a search for Mr. Brock's file has now been conducted. DPA has the file in archive. The circuit court record was obtained from the clerk and reviewed. The review of the file revealed an earlier open records request filed by Mr. Brock. He was provided a response by the circuit clerk on June 3, 2008, which is attached. According to the clerk and a review of the inventory of discovery provided by the prosecutor, no such toxicology report is in the record; nor was it made available to defense counsel.
If a test was run, the only entity in possession of the results is the Kentucky State Police.
Therefore, since DPA does not have the document, it cannot provide it pursuant to Mr. Brock's request.
We cannot determine whether anyone in DPA actually received Mr. Brock's request and failed to respond, but in any event we find no substantive violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries. A search of DPA's archived file and the court record was promptly conducted in response to this appeal and no toxicology report was found. DPA has advised that the toxicology report was not made available to defense counsel, which obviously explains why it is not currently in DPA's possession.
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 proceedings.
Ricky Brock, # 188068-A-1-16Mary Ann Palmer, Esq.
Footnotes
Footnotes
1 Although Mr. Brock's request bears the date January 20, 2009, he indicates in his appeal that he "filed" the request the following day.