Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Montgomery County Coroner Wallace Johnson violated the Kentucky Open Records Act in denying Casey Puckett's August 5, 2010, request "for each Annual Statistical Report for every year" of his employment as Montgomery County Coroner. The Coroner is not statutorily required to create such reports and cannot produce nonexistent records for inspection or copying, nor is he obligated to "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). Because the Coroner ultimately provided Ms. Puckett with any existing records that were responsive to her July 21 and August 5 requests 1 for "each Investigation Report completed by a deputy coroner during the 20 month time period from May of 2004 through December of 2005," any related issues are moot per 40 KAR 1:030, Section 6.
In her August 5 request letter, Ms. Puckett noted that "[a]ccording to the State Archives and Records Commission, County Coroners ['] Offices in the Commonwealth are required annually to compile an Annual Statistical Report to document the activities of that office during that year." William E. Johnson, legal counsel for the Coroner, acknowledged receipt of Ms. Puckett's August 5 request in his August 11 response, and referred her to KRS 72.400, et. seq. "which sets out the Kentucky Coroner's Act of 1978," asking that she cite "any statutory sections requiring an annual statistical report." By letter dated August 12, 2010, Ms. Puckett initiated this appeal, observing that she noticed "an Annual Statistical Report requirement" while reading the County Coroner Records Retention Schedule in order to locate the correct name to use in resubmitting her original request for the specified investigation reports. Ms. Puckett is the Administrative Assistant for the Montgomery County Fiscal Court and, she explained, has "never received such a report" in that capacity nor has the local newspaper. 2
Upon receiving notification of Ms. Puckett's appeal from this office, Mr. Johnson responded on behalf of his client, advising that the Coroner's Office "does not have any such report." In addressing Ms. Puckett's request for the investigation reports, Mr. Johnson observed that "[r]eference was made to KRS 72.025" which "does not appear to pertain to investigative reports." However, Mr. Johnson, explained, "Coroner Johnson does have reports by deputy coroners during the time period referenced in the request. Copies of these reports are enclosed herewith and along with this response are being forwarded to Casey Puckett." As previously indicated, any issues regarding the accessibility of these reports, which are the only existing records that are responsive to Ms. Puckett's request, became moot upon their disclosure per 40 KAR 1:030, Section 6; 3 accordingly, our analysis focuses exclusively on the propriety of the denial by the Coroner of Ms. Puckett's request for the Annual Statistical Report(s).
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. In other words, the Open Records Act does not require a public agency to create records; it only requires that a public agency provide access to nonexempt records which it has, in fact, created. 94-ORD-121, p. 11. Accordingly, 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 as the Coroner has twice 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 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 and this office is without authority to deviate from that statutory mandate.
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, 4 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. The first requirement is not satisfied here.
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 a public agency denies that any responsive documents exist and essentially maintains that none were created, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. The Open Records Act does not impose a duty on a public agency to create specific records. 97-ORD-15, p. 4. Nor is the Attorney General "empowered to substitute [his] 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 Ms. Puckett's appeal, the Coroner reiterated that no documents existed which matched the description provided. The Coroner now finds himself in the position of having to "prove a negative" in order to conclusively refute Ms. Puckett's claim that he created annual statistical reports and those records currently exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "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." 5 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 07-ORD-188 (copy enclosed) . The instant appeal presents no basis to depart from this line of authority.
Although the County Coroner Records Retention Schedule contains a record series which governs "Annual Statistical Report[s]" in the event a coroner actually chooses to generate any records matching the relevant description, 6 and Ms. Puckett's assumption that the Coroner would create and maintain such a record(s) in this case was entirely reasonable in light of this record series, the applicable retention period and disposition instructions only govern existing records matching that description. The Coroner cannot produce that which he does not have nor can this office find that he violated the Act in failing to produce a nonexistent record(s). To hold otherwise would result in the Coroner "essentially hav[ing] to prove a negative" in order to conclusively refute a claim that such reports exist. 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.
Casey PuckettWallace JohnsonWilliam E. Johnson
Footnotes
Footnotes
1 Ms. Puckett requested "all pages of Coroner's Reports signed by deputy coroners from May 2004 through December 2005" by letter dated July 21, 2010, and the Coroner advised her in writing that "no such documents exist" without further explanation. By letter dated August 5, Ms. Puckett submitted her amended request.
2 Enclosed with Ms. Puckett's appeal was a copy of the referenced Schedule. Record Series L2618, entitled "Annual Statistical Report," is described as a "report compiled annually by the coroner's office to document the activities of that office during that year. These statistics are gathered to reflect the investigations of the coroner's office and what types of deaths were investigated." Such reports are "sent to the news media, public library, and the Urban County Government or Fiscal Court, " hence Ms. Puckett's interest. (Emphasis added.)
3 40 KAR 1:030 Section 6 provides: "Moot complaints. If 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." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to 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.
4 See KRS 61.8715.
5 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."
6 However practical or advisable creation and maintenance of such reports might very well be this office was unable to locate any requirement in the Kentucky Coroner's Act or the potentially relevant administrative regulations. A representative of the Kentucky Department for Libraries and Archives also verified that no such authority is referenced in the Description and Analysis for Record Series L2618.