Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Harrison County Sheriff's Office violated the Kentucky Open Records Act in the disposition of Robert C. Linville's November 16, 2010, request for the "'photo [lineup] ' shown to the victim of the alleged Robbery, Burglary [sic] that I was charged" with and "all witness statements concerning this case [Indictment # 08-CR-00040]." Having received no written response to his request, Mr. Linville initiated this appeal by letter dated December 3, 2010. The Sheriff's Office violated the Open Records Act from a procedural standpoint, and KRS 61.880(1) specifically, in failing to issue a written response to Mr. Linville within three business days of receiving his request. As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5. However, upon receipt of Mr. Linville's appeal, Harrison County Attorney Bradley K. Vaughn responded on behalf of the agency, explaining that Deputy Sheriff Paul Olin confirmed that "[n]o photo [lineup] was ever used or shown to the victim" and such records could therefore not be provided. Deputy Olin, who consulted with the Commonwealth's Attorney instead of Mr. Vaughn regarding the request, further advised Mr. Vaughn that "all requested witness statements were previously provided to Robert Linville in the form of discovery in his felony case in circuit court." Having received the notification of Mr. Linville's appeal from this office, Mr. Vaughn correctly advised Deputy Olin that notwithstanding that fact Mr. Linville "is entitled to receive the requested information." As of December 18, 2010, the date of Mr. Vaughn's response, Deputy Olin was planning to send the records to Mr. Linville. This office received a copy of Deputy Olin's December 17, 2010, response to Mr. Linville, in which Deputy Olin reiterated that no photo lineup was used in the investigation and listed the witness statements being provided, via facsimile transmission on December 20, 2010. Because all responsive witness statements were ultimately provided, this office finds that any related issues are moot per 40 KAR 1:030, Section 6; 1 the agency's final disposition of the request is otherwise affirmed.
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 the Sheriff's Office 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, 2 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 Mr. Linville's December 3 appeal, the Sheriff's Office affirmatively indicated that no records matching the description provided ("photo lineup" ) exist. The Sheriff's Office now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Linville's claim that such records 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." 3 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 is controlling on this issue; a copy of that decision is attached hereto and incorporated by reference. Assuming that the Sheriff's Office 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, the Sheriff's Office complied with the Act, regardless of whether the search yielded any results, by affirmatively indicating that no such records were located. 05-ORD-109, p. 3; 07-ORD-190; 02-ORD-144; 01-ORD-38; 97-ORD-161. To hold otherwise would result in the Sheriff's Office "essentially hav[ing] to prove a negative" to refute a claim that the requested photo lineup exists. 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.
Robert C. Linville, # 204080Sheriff Bruce HamptonBradley K. Vaughn
Footnotes
Footnotes
1 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.
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2 See KRS 61.8715.
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3 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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