Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Paducah Police Department violated the Kentucky Open Records Act in denying Ricky Fulcher's written request for "the statement [where] the broken ink pen was found and charge me possession [sic] of drug [paraphernalia] on April 12th 2009 at Paducah Halfway House. " Inasmuch as no such record was ever created, the Department ultimately satisfied its burden of proof in affirmatively indicating to Mr. Fulcher in writing that no record(s) matching that description exists and explaining why. Consistent with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office, including 07-ORD-188 and 07-ORD-190, this office affirms the disposition of Mr. Fulcher's request; a public agency is not required to "prove a negative."
Having received no response to his June 23, 2009, request, Mr. Fulcher initiated this appeal by letter dated July 14, 2009. Upon receiving notification of Mr. Fulcher's appeal from this office, Stacey A. Blankenship, whose firm serves as counsel for the City of Paducah/Paducah Police Department, responded on behalf of the Department. As Ms. Blankenship explained:
On April 12, 2009, [Officer Ryan] Conn had responded to a "halfway house" called Paducah Community Services at the request of the officials there ( See Affidavit of Officer Conn, attached hereto). At that time, Mr. Fulcher was a resident/inmate of the halfway house. Because Mr. Fulcher had failed a recent drug screen, testing positive for a banned substance, the officials there had contacted the police to transport Mr. Fulcher to the McCracken County Jail. As Officer Conn was taking [Mr.] Fulcher into custody, the officials of the halfway house informed him that an item of drug paraphernalia had been found by personnel there, and they requested that [Officer] Conn take possession of it and file an appropriate criminal charge against [Mr.] Fulcher. Because possession of drug paraphernalia is a misdemeanor offense and because [Officer] Conn never saw Mr. Fulcher in possession of it, he declined this request, but advised the officials that if they wanted the matter prosecuted, someone from Paducah Community Services would have to file charges with the Office of the McCracken County Attorney. [Officer] Conn then transported [Mr.] Fulcher to the McCracken County Jail and transferred custody of him to jail personnel. Because Officer Conn did not file any charges against [Mr.] Fulcher, and because the transportation of [Mr.] Fulcher to the Jail did not require it, [Officer] Conn did not generate any paperwork as a result of his contact with [Mr.] Fulcher or officials of Paducah Community Services.
In late June of 2009, [Officer] Conn received [Mr.] Fulcher's Request to Inspect Public Records. This document was addressed to [Officer] Conn rather than to the Records Custodian of the Paducah Police Department. Because [Officer] Conn had not generated any paperwork regarding the incident, he ignored [Mr.] Fulcher's request. Further, Officer Conn never informed anyone at the Paducah Police Department about [Mr.] Fulcher's request that he had received in the mail. 1 In fact, no one at the Paducah Police Department knew anything of [Mr.] Fulcher's request until receipt of the Notification to Agency of Receipt of Open Records Appeal. However, the fact remains that the documents Mr. Fulcher has requested do not exist.
Because the Department cannot produce nonexistent records for inspection or copying nor is the Department required to "prove a negative" in order to refute Mr. Fulcher's claim that such records exist, and the Department has nevertheless explained why no such records were created, this office affirms the agency's ultimate disposition of his request.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Likewise, this office has consistently held that 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. To clarify, the right to inspect 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 Department has asserted here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 2 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 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 responsive documents exist within its custody or control, and, more precisely, maintains that none were created, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1.
In responding to Mr. Fulcher's appeal, the Department affirmatively indicated that no responsive documents exist and explained why in detail; Officer Conn's affidavit is entirely consistent with Ms. Blankenship's response. The Department now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Fulcher's claim that such records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
For these reasons, the Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 3
In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Because the instant appeal presents no reason to depart from this approach, the same result follows here. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, the Department's response must be upheld 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. To hold otherwise would result in the Department "essentially hav[ing] to prove a negative" in order to refute Mr. Fulcher's unsubstantiated claim. 4 07-ORD-190, p. 7.
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.
Ricky Fulcher, # 162001Randy S. BrattonStacey A. Blankenship
Footnotes
Footnotes
1 Although Mr. Fulcher failed to comply with KRS 61.872(2) by submitting his request to the official custodian, and the Department's failure to comply with KRS 61.880(1) by issuing a written response within three business days of receipt is mitigated to this extent, "it is incumbent on the Department to make reasonable efforts to ensure that an employee who receives a misdirected open records request immediately forwards that request to the agency's official custodian for timely processing, or at a minimum notifies the requester and 'furnish[es] the name and location of the custodian of the public record.' KRS 61.872(4)." 03-ORD-032, p. 2.
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2 See KRS 61.8715.
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3 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
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4 By letter dated July 28, 2009, which Mr. Fulcher apparently directed to the undersigned counsel before receiving Ms. Blankenship's written response dated July 27, 2009 (received in this office via facsimile on July 27, 2009, but via U.S. Mail on August 3, 2009), Mr. Fulcher argues that because Officer Conn transported him to the Jail "there has to be paperwork from him." Although this assumption is not unreasonable, Mr. Fulcher offers no actual evidence to refute the Department's position.
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