Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Perry County Sheriff's Department violated the Kentucky Open Records Act in the disposition of Wayne C. Murphy's January 3, 2011, request for "a copy of the 'Arrest Records' and the 'Jail Incarceration' records of [John P. Barger and Robyn Lynn Barger]." Having received "no response from this agency whatsoever," Mr. Murphy initiated this appeal by letter dated January 20, 2011. Upon receiving notification of Mr. Murphy's appeal from this office, Chief Deputy Tony Eversole responded to Mr. Murphy on behalf of the Sheriff's Department, 1 advising that "[t]he requested information does not exist within the records of the Perry County Sheriff's Department. The custodian has reviewed the arrest records of the [D]epartment, and he has no records pertaining to the [named] individuals." Deputy Chief Eversole further advised that "[i]t is possible that any arrest of the named individuals would have been completed by another law enforcement agency." Because the Sheriff's Department cannot produce nonexistent records for inspection or copying, this office finds no error in the agency's ultimate disposition of the 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. 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 Department ultimately asserted here. On numerous occasions, the Attorney General has expressly so held. 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, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that currently exist 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). When, as in this case, a public agency denies that any responsive documents exist, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to Ms. Murphy's appeal, the Sheriff's Department affirmatively indicated that no documents existed which matched the description provided after conducting a review of its arrest records. The Sheriff's Department now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Murphy'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 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, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Mr. Murphy has not attempted to make such a showing here.
The analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Because the Sheriff's Department appears to have made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, by affirmatively indicating that no records were located, and providing a possible explanation for the absence of such records. 4 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. To hold otherwise would result in the Sheriff's Department "essentially hav[ing] to prove a negative" to refute a claim that such records exist in the possession of the agency. 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.
Wayne C. Murphy, # 207062John Leslie BurgettTony EversoleJohn C. Shackelford
Footnotes
Footnotes
1 Deputy Chief Eversole did not address the alleged failure of the agency to issue a written response within three business days of when the request was received nor does the record on appeal contain any other proof regarding this issue. Assuming that the Sheriff's Department actually received Mr. Murphy's request but did not issue a timely written response, this inaction constituted a violation of KRS 61.880(1). When responding to future requests, the Sheriff's Department should be guided by the longstanding principle that 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." 93-ORD-125, p. 5.
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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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4 In order to fully discharge its obligation per KRS 61.872(4), the Sheriff's Department should provide Mr. Murphy with contact information for the custodial agency if known.
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