Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Louisville-Jefferson County Technology Services (Archives Department), hereinafter "Metro Archives," violated the Kentucky Open Records Act in the disposition of Mark Hardin's February 7, 2011, request to inspect any records from Hazelwood Tuberculosis Sanatorium and/or Waverly Hills Tuberculosis Sanatorium concerning his grandparents, William Clarence and Effie Ann Lanham. Having received no response, Mr. Hardin initiated this appeal by letter dated February 21, 2011. On appeal Metro Archives explained that it has no record of having received Mr. Hardin's request. Although this office is unable to conclusively resolve the factual issue regarding the actual delivery and receipt of Mr. Hardin's request, 1 Metro Archives' explanation is entirely credible and, in any event, it cannot produce that which it does not have. In the absence of any evidence to the contrary, this office finds that in affirmatively indicating to Mr. Hardin that it does not possess any records concerning Hazelwood nor does it possess any responsive records concerning Waverly Hills, Metro Archives ultimately discharged its duty under the Open Records Act.
Upon receiving notification of Mr. Hardin's appeal from this office, Assistant Jefferson County Attorney Terri A. Geraghty responded on behalf of Metro Archives, in relevant part, as follows:
Metro Archives is a department within the Metro Technology Services and the mailing address for Metro Archives is the address of Metro Technology Services. Shonda Barlow, the addressee listed on Mr. Hardin['s] correspondence, does not work for either Metro Archives or Metro Technology Services. Ms. Barlow is an employee of the Metro Department of Codes and Regulations. I have spoken to Metro Archives, Metro Technology and Ms. Barlow at Codes and Regulations and none of [the] agencies show receipt of Mr. Hardin's original request. The first notice of the request is when Metro Technology Services received the correspondence from your office concerning the Open Records Appeal.
. . . I have been informed by Dave Morgan, the archival coordinator, that Metro Archives does not have any records related to Hazelwood Sanatorium/Hospital. This may be due to the hospital not being owned or operated by the local government. Mr. Morgan has informed me that the only records that Metro Archives has related to Waverly Hills Tuberculosis Sanatorium [are] a few architectural drawings of the major hospital buildings and some annual reports and audits. There are no records related to patients or other medical records. Mr. Morgan believes the Board of Health sold the facility around 1960 and that the State ran it as a geriatric hospital for some years before it was finally closed. If Mr. Hardin would like to inspect the limited records related to Waverly Hills, Mr. Hardin can contact Mr. Morgan at (502) 574-5751 and the records will be made available to him.
Because Metro Archives cannot produce that which it does not have for inspection or copying, is not required to "prove a negative," and has now advised Mr. Hardin that no such records currently exist in the custody of the agency in addition to briefly explaining why, this office finds no error in the ultimate disposition of Mr. Hardin's request.
As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, 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. 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 Metro Archives ultimately asserted in this case. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 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 such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9. In our view, the analysis contained in 07-ORD-188 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. See also 07-ORD-190.
Having ultimately indicated to Mr. Hardin that no responsive records exist, Metro Archives discharged its duty under the Open Records Act relative to his request. 05-ORD-109, p. 3; 02-ORD-144; 97-ORD-161; OAG 91-101; OAG 86-38. To hold otherwise would result in Metro Archives "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, or any evidence to suggest that such records were created to begin with or would still exist, this office must affirm the agency's denial of Mr. Hardin's request in accordance with Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), and prior decisions of this office such as 07-ORD-188. Assuming that Metro Archives made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 2 as the record suggests, Metro Archives cannot be said to have violated the Act in denying a request for nonexistent records. 05-ORD-109, p. 3.
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.
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