Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying Michael A. Peak's August 11, 2010, request for a copy of the "DNA Profile that Emily Craig PhD received from the FBI on Garcia, Miguel Angel FA-99-09 in 2008." In a timely written response, KSP advised Mr. Peak that his request "seems, on its face and its entirety, to relate to a DNA sample." Records Custodian Kathy D. Peach denied Mr. Peak's request on the basis of KRS 17.175(4). Mr. Peak subsequently initiated this appeal, disputing the agency's interpretation of KRS 17.175(4) as KSP "did not 'produce' or create the record" he seeks; rather, it was "produced and provided by the FBI, with a copy of the findings in question being provided, or simply forwarded to, [KSP]." On appeal, Emily Perkins, Paralegal Consultant, elaborated upon the agency's position, explaining that KSP "maintains that this report, regardless of which agency may have created the document, is exempt from disclosure under KRS 17.175(4)." Consistent with 03-ORD-126, this office agrees; however, Ms. Perkins further advised that upon receipt of this appeal she "discussed with Laboratory personnel whether this report is in existence or in the possession of the KSP" and learned that KSP "is not in possession of the report that Mr. Peak is requesting," which is likely a "mitochondrial DNA profile completed by a federally funded laboratory and subsequently provided to the Office of the Medical Examiner upon completion of the testing." Accordingly, KSP "also does not have possession or control of the documents requested." Citing a line of prior decisions by this office, Ms. Perkins correctly asserted that a public agency "cannot furnish access to a record that it does not have." Although KSP should have advised Mr. Peak of this fact initially, 1 the agency's reliance on KRS 17.175(4) was proper and, in any event, it cannot produce a nonexistent record or that which it does not possess.
Pursuant to KRS 17.175(4) , "DNA identification records produced from the samples are not public records but shall be confidential and used only for law enforcement purposes." This provision also expressly provides that "DNA identification records shall be exempt from the provisions of KRS 61.870 to 61.884 [the Open Records Act] ." KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." When viewed in conjunction, these statutory provisions validate the position set forth by KSP. In 03-ORD-126, this office acknowledged "that there is a paucity of available legal authority to guide us in resolving" the question presented here, and in that case, but found that "the interpretation of KRS 17.175(4) which KSP advances 'effectuates the plain meaning and unambiguous intent expressed in the law.'
Bob Hook Chevrolet Isuzu v. Commonwealth of Kentucky, Transportation Cabinet, 983 S.W.2d 488, 492 (1958), cited in
J.D.K. v. Commonwealth, Ky. App., 54 S.W.3d 174, 175 (2001)." 03-ORD-126, p. 5. The reasoning found in 03-ORD-126, a copy of which is attached hereto and incorporated by reference, is controlling as to application of KRS 17.175(4).
That being said, the Attorney General has long recognized that a public agency cannot afford a requester access to nonexistent records or those it does not possess. 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection 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. With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis contained in 07-ORD-188, a copy of which is attached hereto and incorporated by reference, is controlling. In responding to Mr. Peak's appeal, KSP belatedly advised that no responsive document exists in the custody of the agency. 2 KSP now finds itself in the position of having to "prove a negative" in order to conclusively establish that no report exists in the possession of the agency. 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."
Here, KSP has provided a credible explanation of why it would not possess the document requested. Nothing more is required on the facts presented. See 08-ORD-154. To hold otherwise would result in KSP "essentially hav[ing] to prove a negative" in order to refute a claim that such a document currently exists in the possession of the agency. 07-ORD-190, p. 7. In short, even assuming for the sake of argument that KRS 17.175(4) did not apply, KSP cannot be said to have violated the Act in denying access to a nonexistent document(s) or that which it does not possess.
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.
Michael A. Peak, # 135081Kathy D. PeachRoger G. WrightEmily M. Perkins
Footnotes
Footnotes
1 See 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and ? it is incumbent on the agency to [state their nonexistence] in clear and direct terms? While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient").
2 Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " In order to fully discharge its duty, KSP should provide Mr. Peak with contact information for the custodial agency.