Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Russell Police Department violated the Kentucky Open Records Act in denying Wayne C. Murphy's October 10, 2009, written request for all witness statements "that were collected concerning the robbery and assault that occur[r]ed at Super Star video store on July 14th, 2004[,] including and Not [sic] limited to witness[] statements of nearby [b]usinesses[,] including the statements of Nikki Gibbs and Angie Daniels" and "a copy of any and all video surveillance that was collected by Investigating Officers[,] including the [s]urveillance that was collected from the First-n-Peoples [sic] Bank[.]" In a timely written response, Russell City Attorney James E. Armstrong denied the request because he was advised that Mr. Murphy "already ha[d] the requested information. " Although the RPD cannot provide Mr. Murphy with nonexistent records or those which it does not possess, the RPD is not relieved of its duty to provide Mr. Murphy with any nonexempt records in the possession of the agency which are responsive to his request merely because a copy of his file was provided to his defense counsel and/or the Innocence Project as the agency has asserted. Neither allegations of records tampering, nor disputes concerning discrepancies between the records being sought and those provided can be resolved in this forum.
In denying Mr. Murphy's request, Mr. Armstrong advised him that "Attorney Robin Webb of Grayson, Kentucky represented you in the trial on the merits and all of the requested information has been provided to her. Her file is your file so you can obtain her file if you simply request the file." Mr. Armstrong further indicated that "an attorney from the Innocence Project contacted Detective Tim Wilson who provided the entire file to the attorney." By letter dated October 17, 2009, Mr. Murphy argued that he was "personally entitled" to a copy of the records even if his counsel had already been provided with a copy. Furthermore, Mr. Murphy disputed that Detective Wilson had provided all of the surveillance that was collected "throughout the entire proceedings." Mr. Murphy further alleged that all witness statements taken from employees of the Bank "were not submitted in this case." Finally, Mr. Murphy alleged that surveillance from King's Daughters Hospital that "supported [his] innocence" was "edited" and "tampered" with before it was provided to Ms. Webb.
By letter dated October 22, 2009, Mr. Armstrong advised Mr. Murphy that he "stand[s] by" his initial response. Mr. Murphy has "all of the information from Detective Tim Wilson's file," according to Mr. Armstrong, "as the information has been provided to [his] attorney, Robin Webb, of Grayson, Kentucky and to the Innocence Project." On appeal, Mr. Murphy disputes the assertion that said witness statements were provided to his defense counsel and/or the Innocence Project and further alleges that some of the surveillance has been edited or tampered with. The RPD "has not provided this material" to Ms. Webb or the Innocence Project," according to Mr. Murphy, or he "would have the material" just as he received "everything else."
Upon receiving notification of Mr. Murphy's appeal from this office, Mr. Armstrong elaborated upon his previous responses, in relevant part, as follows:
The City of Russell, Kentucky does not have witness statements from Angie Daniels and Nicki Gibbs. There is no written statement signed by either lady. Both individuals were questioned by Detective Roy Ison, at the time a member of F.A.D.E. Task Force who was in the area on another case. Detective Tim Wilson, Sr. requested Detective Ison assist him in the assault case which occurred at the video store in Russell, Greenup County, Kentucky. The Roy Ison notes were contained in Detective Wilson's file which was turned over to the Innocence Project to be copied by the Innocence Project.
The allegation all surveillance collected was not turned over and surveillance from King['s] Daughters Hospital was edited and tampered with is totally false. Unedited copies of all surveillance tapes obtained by the [RPD] were turned over to the Commonwealth['s] Attorney's Office. Detective Tim Wilson, Sr. does not have personal knowledge what surveillance tapes were introduced into evidence. Detective [Wilson] was informed by the Commonwealth['s] Attorney that a copy of all surveillance tapes provided by the [RPD] were subsequently turned over to [Mr. Murphy's defense counsel] through discovery.
The City of Russell, Kentucky is not withholding any written statements from Angie Daniels or Nicki Gibbs. Further, the City of Russell, Kentucky has turned over unedited copies of all surveillance tapes in its possession to the Commonwealth['s] Attorney. The City of Russell, Kentucky has not tampered with any surveillance tapes.
Although the RPD cannot produce nonexistent records for inspection or copying, nor does the RPD have to "prove a negative" in order to refute a claim that certain records exist in the possession of the agency, its disposition of the request otherwise failed to comply with provisions of the Open Records Act; however, allegations of tampering cannot be resolved in the context of an Open Records Appeal.
To begin, the fact that other parties may have been provided with a copy of Mr. Murphy's file, including any existing records that would satisfy his request, and that Mr. Murphy obtained a copy of his file from a source other than the RPD, does not relieve the RPD of its duty to provide him with a copy of any of those records also in the possession of the agency. 00-ORD-16, p. 4. On at least several different occasions, the Attorney General has rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10; 00-ORD-16; 04-ORD-059; 04-ORD-220; 06-ORD-131. It is only through full disclosure of a public agency's records that a requester can satisfy himself that the record is complete. Id. As the Attorney General has consistently recognized, "a public agency cannot withhold public records from a requester simply because the records may be obtained from another source." 97-ORD-87, p. 4, citing OAG 90-71. Based upon the foregoing, this office finds that the RPD violated the Act in denying Mr. Murphy's request partially because his defense counsel and/or the Innocence Project had already been provided with a copy of his file.
That being said, a public agency such as the RPD cannot produce for inspection and copying that which it does not have. 02-ORD-118, p. 3. Rather, the right to inspect attaches only if the records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 2, citing 97-ORD-18. As the Attorney General has consistently recognized, "a public agency cannot provide access to records that it does not have or which do not exist." 03-ORD-205, citing 99-ORD-98. 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 RPD ultimately asserted here in responding to Mr. Murphy's request for the specified witness statements. On numerous 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) expressly limits 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, 1 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 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, and the record on appeal does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36.
In responding to Mr. Murphy's appeal, the RPD asserted that no documents exist which are responsive to his request for the written statements of Angie Daniels and Nikki Gibbs and explained that none were created. The RPD now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Murphy's claim that responsive documents exist aside from Detective Ison's interview notes. 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." 2
In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based on the nonexistence of responsive documents in the absence of a prima facie showing that the records sought did, in fact, exist. See, e.g., 06-ORD-042; 06-ORD-223; 07-ORD-188; 07-ORD-190. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, this office is compelled to affirm the agency's ultimate disposition of Mr. Murphy'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. To hold otherwise would result in the RPD "essentially hav[ing] to prove a negative" in order to refute a claim that such records were created and currently exist in the possession of the agency. 07-ORD-190, p. 7. 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. Said another way, this office is "not empowered to go beyond the written record to determine whether [agency] employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
In 05-ORD-236, the Attorney General expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." Id., p. 3 (reporter questioned the validity of invoices produced in response to request, and the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 04-OMD-182 (questions regarding the authenticity of a public agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records but Attorney General refused to consider this issue). As in these decisions, the Attorney General finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal, and therefore declines to assign error on that basis. If Mr. Murphy has evidence to support his allegations that the RPD willfully concealed or tampered with records, he may wish to consider the options available under KRS 61.991(2)(a); however, such issues cannot be resolved in this forum, nor does the record on appeal contain any evidence of such wrongdoing. 09-ORD-095.
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.
Wayne C. Murphy, # 207062James E. Armstrong
Footnotes
Footnotes
1 See KRS 61.8715.
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2 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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