10-ORD-012 | KOGC

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 the disposition of Wayne C. Murphy's request for a copy of the "'Policy and Procedural' [sic] of Investigation(s) regarding any and all cases" within the case file for Case No. 040707108, "[a]ll of the 'Witness(es) Statements' collected by Office Hartman, of the Bank employees of the 'First-N-Peoples' Bank [sic], taken on or about the [sic] July 14th, 2004---or thereafter (as well)[,]" and "[t]he entire 'Time Sheet(s)' [sic] of Det. Tim Wilson for the [m]onth[s] of July [2004] and August [2004]." Because the RPD ultimately provided Mr. Murphy with Detective Wilson's timesheets for July and August 2004, any related issues are moot per 40 KAR 1:030, Section 6; this office thus respectfully declines to issue a decision regarding those records. 1 Having affirmatively indicated to Mr. Murphy that no document matching the first description exists nor did Officer Hartman take any such witness statements, the RPD discharged its duty as public agencies cannot produce nonexistent records nor must public agencies "prove a negative" in order to refute a claim that certain records exist under Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005).

Mr. Murphy directed his request to "Sgt. Charles Stewart[] of the Russell Police Dept." on December 8, 2009. Having received no response, Mr. Murphy initiated this appeal by letter dated December 20, 2009. Upon receiving notification of Mr. Murphy's appeal from this office, Russell City Attorney James E. Armstrong responded on behalf of the RPD, initially advising that he "had not seen the letter of December 8, 2009 addressed to Sgt. Charles Stewart until it was received in [his] office on Monday, January 4, 2010," with the Notification to Agency of Receipt of Open Records Appeal from this office. On December 30, 2009, Mr. Armstrong "learned Mr. Murphy had forwarded letters to Sgt. Charles Stewart" at which point he "forwarded the original of the enclosed letter to Mr. Murphy advising him Detective Charlie Stewart is no longer employed by the City of Russell, Kentucky and that he is now employed by the City of Bellefonte, Kentucky." It was Mr. Armstrong's understanding that "any correspondence directed to Sgt. Charles Stewart had been previously delivered to Sgt. Charles Stewart at his new place of employment." 2

In specifically addressing Mr. Murphy's request, Mr. Armstrong advised:

1. Within case file # 040707108 there is no "Policy and "Procedural" of Investigations regarding any and all cases.

2. Today I talked with newly appointed Chief of Police, Tim Wilson. Chief Wilson contacted retired City of Russell Police Officer Hartman. Officer Hartman relayed to Chief Wilson he had not collected any witness statements from First & Peoples Bank employees concerning Wayne C. Murphy on or about July 14, 2004 or thereafter (as well).

3. Enclosed are five pages of time sheets for then Detective Tim Wilson for the months of July 2004 and August 2004.

Consistent with prior decisions of this office, including 07-ORD-188 and 07-ORD-190, this office affirms the agency's ultimate disposition of Mr. Murphy's 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. 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 RPD has now asserted. 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 the circumstances 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, 3 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 beyond those provided, 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. Murphy's appeal, the RPD asserted that no documents exist which are responsive to his request for the "Policy and Procedural [sic]" nor do any of the requested witness statements exist inasmuch as Officer Hartman did not collect any. 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. 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." 4

Since Bowling was issued, this office has repeatedly 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. 09-ORD-199 (affirming denial by RPD of request by Mr. Murphy for various records, including specific witness statements). 5 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 must 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.

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, # 207062Tim WilsonJames E. Armstrong

Footnotes

Footnotes

1 40 KAR 1:030, Section 6 provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140.