Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in the disposition of Pamela Bishop's September 23, 2010, request for Detective Michael Arteburn's application for employment and background check, "all disciplinary actions taken," if any, to include "any negative reports from any supervisors," verification/ certification that he completed "a training course in Seattle (Jan. 2009)" for CACU, and the "[p]ersonnel document showing request to be placed in [CACU] and who approved" it. Ms. Bishop initiated this appeal by letter dated October 5, 2010, alleging that she had not received a written response, but indicating that she had "specifically asked for a copy of the complaint filed against Detective Michael Arteburn in 2003 for Truthfulness" as well as "any other complaints filed against Detective Arteburn and Detective Michael Ball to date." Ms. Bishop apparently requested those records on September 1 in a separate request, as LMPD clarified in responding to her October 5 appeal, but was provided with 26 pages of responsive documents on September 9, and then provided with another 45 pages of responsive documents by the Professional Standards Unit on September 22, as the record on appeal confirms. 1 Because Ms. Bishop was ultimately provided with any existing documents responsive to her September 1 request, 2 any related issues are moot per 40 KAR 1:030, Section 6; 3 accordingly, our analysis focuses exclusively on the disposition of her September 23 request. 4 LMPD has now produced all documents responsive to items 2 and 4, advised Ms. Bishop that no documents responsive to item 3 exist, and properly withheld documents responsive to item 1 per KRS 15.400(3) . No violation occurred.
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 as LMPD ultimately asserted here. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 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. 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, 5 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 (s), and, if so, whether the record(s) 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). When, as in this case, a public agency denies that any responsive documents exist beyond those already provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. 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 Ms. Bishop's October 5 appeal (and the request which it apparently did not receive until October 8), LMPD affirmatively indicated that no record(s) matching the description provided (verification/ certification of CACU training) exists. LMPD now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Bishop's claim that such a record(s) exists. 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." 6 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 records in the absence of a prima facie showing that the records 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.
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. Assuming that LMPD made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," as the record suggests, LMPD complied with the Act, regardless of whether the search yielded any results, by affirmatively indicating that no such record(s) was located. 7 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161. To hold otherwise would result in LMPD "essentially hav[ing] to prove a negative" to refute a claim that the requested "verification/ certification" exists. 07-ORD-190, p. 7. Given this determination, the remaining question is whether LMPD erred in withholding Detective Arteburn's application for employment and background check.
In denying Ms. Bishop's request for these records, LMPD relied upon KRS 61.878(1)(a) and "KRS 15.380 to 15.404." On appeal, Ms. Geraghty correctly observed that "KRS 15.400 clearly states that personal identifiers and specifically background checks of law enforcement applicants shall not be disclosed. The Attorney General also has confirmed that employment applications and background checks of law enforcement applicants are not required to be disclosed under the Open Records Act. See 00-ORD-118." The reasoning contained in 00-ORD-118, a copy of which is attached hereto and incorporated by reference, is controlling with regard to application of KRS 15.400(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Compare 03-ORD-043. In that decision, this office upheld the denial by the Louisville Division of Police (now encompassed within LMPD) of a request by an unsuccessful applicant for "[a]ll documentation and records related to [his] application for the position of Police Recruit with the Louisville Division of Police" on the basis of KRS 15.400(3), pursuant to which "[t]he Open Records Act notwithstanding, the person's home address, telephone number, date of birth, Social Security number, background investigation, medical examination, psychological examination, and polygraph examination conducted for any person seeking certification pursuant to KRS 15.380 to 15.404 shall not be subject to disclosure."
Significantly, in 00-ORD-118 this office recognized that "records of any applicant who submits to mandatory investigation and testing pursuant to KRS 15.382 and 15.400(2), with the goal of employment and certification as a peace officer, are excluded from inspection regardless of the applicant's success in achieving this goal." 00-ORD-118, p. 6. "Any other interpretation," the Attorney General reasoned, "would thwart the intent of the legislature by requiring public agencies to disclose [information and records identified at KRS 15.400(3)] of unsuccessful applicants to all requesters, including the unsuccessful applicants themselves and the public generally, thereby compromising the applicants' privacy interests and undermining the purposes for which the statutes were enacted, namely to promote candor in the investigation and testing process, and thus to identify the best qualified applicants." Id. (Original emphasis.) It stands to reason that if an unsuccessful applicant is not entitled to receive copies of his own records, then KRS 15.400(3) precludes a member of the general public from accessing such documentation. LMPD properly denied this portion of Ms. Bishop's request on the basis of KRS 15.400(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 8
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.
William SimsMichael O' ConnellWilliam P. O'BrienKathleen Albers Renda
Footnotes
Footnotes
1 LMPD provided this office with, among other documents, a copy of an e-mail from Ms. Bishop to Sharon L. King (paralegal) dated October 8, 2010, in which Ms. Bishop acknowledged receipt of the responsive documents and further advised "the only things I need now are" the items listed on her September 23 request.
2 Ms. Bishop also failed to include a copy of her September 1 request and the written responses thereto from the agency. Because Ms. Bishop did not provide the documentation required to perfect her appeal relative to her September 1 request per KRS 61.880(2), this office would have been precluded from addressing the merits of her appeal in that regard.
3 Pursuant to 40 KAR 1:030, Section 6, "[i]f 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.
4 In responding to Ms. Bishop's appeal, Assistant Jefferson County Attorney Kathleen Albers Renda indicated that "LMPD did not receive the September 23 request until October 8, 2010, when LMPD received Ms. Bishop's letter of appeal." As in 03-ORD-061, 05-ORD-013, and 07-ORD-178, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of Ms. Bishop's request for this office to conclusively resolve the related factual issue; however, a public agency such as LMPD cannot respond to a request which it does not receive and this office has no reason to question its veracity here. See 05-ORD-222. Absent objective proof to validate Ms. Bishop's position, this office cannot determine that LMPD violated the Act from a procedural standpoint by failing to respond within three business days per KRS 61.880(1) and makes no finding in that regard. Because LMPD, to its credit, has addressed the merits of any issues related to Ms. Bishop's September 23 request, in the interest of efficiency this office will address the substantive issues raised.
5 See KRS 61.8715.
6 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."
7 In her October 19 response, Ms. King advised Ms. Bishop that LMPD Training Unit had confirmed "[t]here are no records responsive to your request."
8 Since 1989 this office has "consistently recognized that the inspection of the personnel records of public employees, such as applications for employment and resumes, which contain relevant prior work experience and educational qualifications, does not constitute an invasion of privacy." 93-ORD-32, p. 3. See OAG 89-90; OAG 90-113; OAG 92-85; 02-ORD-140; 05-ORD-037. These opinions are premised on the notion "that a person does not typically work, or attend school, in secret, and that therefore the employee's privacy interest in such information is outweighed by the public's right to know that that employee is qualified for public employment. " Id. Conversely, personal information such as that specifically identified at KRS 15.400(3), including Social Security number, home address and telephone number, etc. may also be withheld on the basis of KRS 61.878(1)(a). The record is unclear as to whether LMPD possesses a document which is properly characterized as Detective Arteburn's application for employment (as opposed to his background investigation); if so, LMPD may withhold identifying personal information unrelated to his performance of public employment per KRS 61.878(1)(a) and/or KRS 15.400(3), but must redact whatever is protected and release those portions of the record pertaining to his qualifications and work experience, if any.