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 Department of Fish & Wildlife Resources ("KDFWR") violated the Kentucky Open Records Act in the disposition of Kathy Gilliam's February 22 and February 28, 2011, 1 requests for various records concerning the arrest of Ivan Gibson on November 20, 2009. Because KDFWR cannot produce a nonexistent vehicle inventory report for Mr. Gibson's ATV, because the agency cannot be required to "prove a negative" in order to refute Ms. Gilliam's claim that such a report was created at the time of his arrest on that date, and because the remainder of the issues raised in relation to her February 22 request are not justiciable in the context of this appeal, this office affirms the agency's disposition of that request. Inasmuch as KDFWR appears to have provided Ms. Gilliam with most of the existing responsive documents, if not all, with the exception of the "hard copy of the (NCIC) document that Officer Jason Slone used to determine Ivan Gibson was a felon that lead [sic] to his arrest on November 20, 2009," in response to her February 28 request, and she does not otherwise challenge its disposition of that request, our analysis focuses on the question of whether KDFWR is required to release information contained in the NCIC (National Crime Information Center) database. 2 Having reviewed 28 USC § 534, and the accompanying regulations found at 28 CFR § 20.1-§ 20.38, incorporated into the Open Records Act by operation of KRS 61.878(1)(k) , this office finds that KDFWR did not violate the Open Records Act in denying Ms. Gilliam's request for a record containing this information.
By letter dated February 22, 2011, Ms. Gilliam addressed her concerns related to KDFWR's February 17, 2011, letter, a copy of which is not of record, clarifying that she wished to "view the inventoried and impounded report of Mr. Ivan Gibson's Honda, ATV Red (Big Red) that Office[r] Slone seized" on November 20, 2009. (Original emphasis.) Ms. Gilliam further complained that she received only page six of the "Seizure report" completed on that date, and noted that it "does not provide a specific address of the items being stored. " In a timely written response, Records Custodian Sharon Sparrow advised Ms. Gilliam, in relevant part, as follows:
The red Honda ATV was not impounded by the [KDFWR] or Officer Jason Slone. The ATV was removed from the middle of the road on the Consol Management Area, where [it] was causing a danger to persons traveling the road. It was towed for safety purposes by Beaver Body Shop [in] Topmost, KY. KDFWR did not impound Mr. Gibson's ATV; therefore there is no report of inventoried items [and] no report of impoundment. The evidence found on Mr. Gibson's person and referenced in the seizure report [is] being held at the Fish and Wildlife Office, 1655 North Main Street, Hazard, KY. The seizure report that I provided you on February 17, 2011, lists the items being held.
The seizure report is a one page document. The page number at the top of the page is the number the fax machine posts on top of multiple documents when they are sent. The seizure report is page 6 of the multiple documents that I requested from Officer Jason Slone. If you will look at the top of the page for the documents that were sent in my February 18, 2011, letter (complaints and statements on Mr. Gibson) you will see pages 2, 3, 4 and 7. The fax that Officer Slone sent to me consisted of 7 pages; page 1 is the cover letter to me from Officer Slone. Page 5 of the fax was a daily planner that was not requested in your request.
On a standard request form dated February 28, 2011, Ms. Gilliam replied to KDFWR's February 18 letter (of record) by requesting to inspect a hard copy of the NCIC document relied upon by Officer Slone, "all dispatch logs (calls) on Ivan Gibson," and "all 2009-2010 [e]lk lottery applicants & hunters who purchased elk quota permits." By letter dated March 7, 2011, Ms. Sparrow advised Ms. Gilliam as follows regarding the NCIC information:
The National Crime Information Center (NCIC) document you have requested to inspect (1) is not available in hard copy. NCIC is a computerized index of criminal justice information (i.e. criminal record history information, fugitives, stolen properties, missing persons). It is available to [f]ederal, state, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year. The purpose for maintaining the NCIC system is to provide a computerized database for ready access by a criminal justice agency making an inquiry and for prompt disclosure of information in the system from other criminal justice agencies about crimes and criminals. This information assists authorized agencies in criminal justice and related law enforcement objectives, such as apprehending fugitives, locating missing persons, locating and returning stolen property, as well as in the protection of the law enforcement officers encountering the individuals described in the system. NCIC is maintained by the Federal Bureau of Investigation (FBI), you can contact them or visit their website at http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm to obtain more information on NCIC.
Ms. Sparrow further advised that KDFWR can only search for specific calls by date. In her February 24 letter to Ms. Gilliam, she provided "2 pages of KDFWR dispatch logs" that pertained to Mr. Gibson dated November 20, 2009, but advised that she was unable to "search for other entries involving Mr. Gibson pursuant to KRS 61.872(6)." 3 Enclosed with Ms. Sparrow's March 7 letter were "the list of 2009-2010 elk lottery applicants on CD and the hard copy of the list of hunters who purchased the elk quota permits for the 2009-2010 license year." 4
By letter dated March 14, 2011, Ms. Gilliam initiated this appeal, raising various tangential issues regarding the agency's protocol for maintenance of complaints, 5 implementation of its own policies and procedures, and its purported "failure to 'follow-up on the 'Complaints' of Mr. Ivan Gibson." Ms. Gilliam also reiterated her belief that Mr. Gibson's ATV was, in fact, impounded on the date in question, and essentially questioned whether he should have been arrested to begin with. Suffice it to say that none of these issues are justiciable in the context of an Open Records Appeal; rather, the role of the Attorney General in resolving disputes arising under the Open Records Act is narrowly defined at KRS 61.880(2)(a). In relevant part, Ms. Gilliam asserted that "the NCIC report is available in hard copy. " Again, her primary complaint was an issue not properly raised in this forum, specifically that Officer Slone charged Mr. Gibson incorrectly which, according to Ms. Gilliam, was because he "did not review the NCIC database. " While Ms. Gilliam is correct in asserting that information contained in a database can and should generally be reduced to hard copy upon request unless protected, 6 a review of the relevant law confirms that NCIC information is not subject to inspection; accordingly, further discussion of whether KDFWR was otherwise required to reduce information contained in that database to hard copy is unwarranted.
Upon receiving notification of Ms. Gilliam's appeal from this office, KDFWR General Counsel Margaret Everson responded on behalf of her client, initially observing that KDFWR "has provided all existing documents within the control of the [agency]" which are responsive to Ms. Gilliam's request, "a fact Ms. Gilliam does not dispute in her appeal." Ms. Everson correctly noted that Ms. Gilliam largely just disagreed "with policies and procedures that are squarely within the responsibility of the KDFWR to administer and beyond the scope of the Open Records Act. " Quoting the definition of "public record" contained in KRS 61.870(2), Ms. Everson reiterated that "[s]ince an inventory search was not conducted an inventory document or record was never created" within the meaning of this provision. With regard to complaints received on Ivan Gibson, Ms. Everson explained that "[c]opies of four complaints were provided to [Ms. Gilliam] on February 18, 2011" and correctly argued that "since Ms. Gilliam has not alleged a document within the custody of KDFWR was improperly withheld it is not necessary to address her other concerns in this response." KDFWR agreed that NCIC "is a computerized index of criminal justice information available to Federal, State, and local law enforcement agencies. However, the custodian of the system within the definition found in KRS 61.870(6) is not the KDFWR." KDFWR officers "simply view the information online and a public record within the meaning" of KRS 61.870(2) is never created. Furthermore, Ms. Everson continued, "even if a paper copy had been created Title 28, of the Code of Federal Regulations, details the legal basis for restrictions on dissemination of this information. Therefore, had a public record existed the KDFWR could withhold this document pursuant to KRS 61.878(1)(k)[.]" 7
Because KDFWR is not expected to produce a nonexistent record for inspection or copying, and this office cannot resolve disputes resulting from conflicting factual narratives, 8 there is no basis upon which to conclude that KDFWR violated the Open Records Act in the disposition of Ms. Gilliam's request for the "inventory report" of Mr. Gibson's ATV. Having reviewed 28 USC § 534 and the accompanying regulations found at 28 CFR § 20.1-§ 20.38, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), this office agrees that information contained in the NCIC database was properly withheld. In sum, KDFWR did not violate the Open Records Act.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to a nonexistent record(s) or that which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the record(s) 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 in affirmatively indicating that no such record(s) exist as KDFWR ultimately did here with regard to the requested inventory report. 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. 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.
Because the record on appeal does not present any reason for us to depart from the reasoning found in 11-ORD-035 (In re: Kathy Gilliam/KDFWR, issued on March 10, 2011) regarding this question, the same result follows. Now, as before, KDFWR finds itself in the position of having to "prove a negative" in order to refute Ms. Gilliam's belief that such a record was created. However, in addressing this dilemma, 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." 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 existed in the possession of the agency. See, e.g., 06-ORD-042; 08-ORD-189. The cell phone records, Uniform Citation, photograph of the scene, and receipt from Beaver Body Shop produced by Ms. Gilliam fail to establish that Mr. Gibson's vehicle was impounded as opposed to just being towed; these documents also fail to contradict, in relevant part, KDFWR's explanation for the nonexistence of the report. Consequently, Ms. Gilliam cannot make a prima facie showing that the documents requested exist in the possession of the KDFWR. The agency's response to Ms. Gilliam's request must be affirmed in this regard under Bowling and prior decisions of this office. To hold otherwise would result in KDFWR "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7.
The remaining question is whether KDFWR properly declined to release information contained in the NCIC database. As KDFWR correctly noted, KRS 61.878(1)(k) authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation [.]" This provision operates in tandem with 28 USC § 534 to prohibit a state agency such as KDFWR from disclosing criminal history record information. 28 USC § 534(a)(1) and (4) impose upon the United States Attorney General the duty to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records" 9 and to "exchange such records and information with, and for the use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions." Pursuant to 28 USC § 534(b), "[t]he exchange of records and information authorized [by the foregoing provision] is subject to cancellation if dissemination is made outside the receiving departments or related agencies." 10 Under this provision, KDFWR risks cancellation of its records exchange arrangement with the FBI if it releases Mr. Gibson's NCIC information to Ms. Gilliam or anyone else other than authorized officials at KDFWR or "related agencies." KDFWR is therefore prohibited from providing Ms. Gilliam with a copy of the requested NCIC document. See 97-ORD-178 (affirming denial by correctional facility of request by inmate for copy of his "rap sheet" per 28 USC § 534 and KRS 61.878(1)(k)); 06-ORD-136 (affirming denial by Scott County Public Schools of request for criminal background checks per 28 USC § 534)(copy attached). As in 97-ORD-178, this office directs the appellant to 28 CFR § 16.32 and § 16.33 (copies enclosed) for the "extensive mechanism by which the subject of [the criminal history record, Mr. Gibson here,] may obtain a copy of that document." 97-ORD-178, p. 2.
In 06-ORD-136, a factually dissimilar but sufficiently analogous decision, this office affirmed the denial by the Scott County Public Schools of a request for "'[t]he Civil Applicant Responses from the F.B.I. and the Criminal Records Dissemination Section Reports from the K.S.P. for current certified and certified emergency substitutes, including, but not limited to [227 individuals]." The School District argued that receipt of these records from the FBI was explicitly governed by 28 USC § 534(a)(1), (a)(4), and (b), and that it would "'risk the discontinuation of any ability to obtain [the] records on teacher applicants if these . . . records are disseminated to the general public.'" 06-ORD-136, p. 2. The analysis relative to 28 USC § 534, contained at pgs. 4-6 of that decision, which relies heavily upon
U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774, is equally applicable on the facts presented. A copy of 06-ORD-136 is attached hereto and, in relevant part, incorporated by reference. In Reporters Committee, the United States Supreme Court recognized that because "[a]rrests, indictments, convictions, and sentences are public events that are usually documented in court records," individual events contained in summaries of criminal histories "are matters of public record." Id. at 753. However, "availability and dissemination of the actual rap sheet to the public is limited." Id. Our holding today is consistent with this legislative recognition that "the power of compilations to affect personal privacy . . . outstrips the combined power of the bits of information contained therein." Reporters Committee, above, at 765.
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.
Distributed to:
Kathy GilliamSharon SparrowMargaret Everson
Footnotes
Footnotes
1 Although Ms. Gilliam included two copies of the agency's February 18, 2011, response to a request she apparently submitted on January 31, 2011, with her March 14, 2011, appeal challenging, in part, said response, she did not include a copy of the January 31 request for consideration; accordingly, KRS 61.880(2)(a) and 40 KAR 1:030, Section 1 preclude the Attorney General from reviewing or commenting on the actions of the agency in that regard.
2 28 CFR § 20.3(n) provides that NCIC means:
the computerized information system, which includes telecommunications lines and any message switching facilities that are authorized by law, regulation, or policy approved by the Attorney General of the United States to link local, state, tribal, federal, foreign, and international criminal justice agencies for the purpose of exchanging NCIC related information.
3 As previously indicated, consideration of this argument is unnecessary given that Ms. Gilliam was provided with responsive log entries from the presumably relevant date, and KDFWR has not declined to search for additional entries upon receipt of specific dates, which it apparently uses to catalog such records.
4 Because KDFWR has provided Ms. Gilliam with all existing responsive documents, any related issues are moot per 40 KAR 1:030, Section 6.
5 Ms. Gilliam may wish to contact the Kentucky Department for Libraries and Archives regarding these concerns.
6 This office has long recognized that doing so is not the equivalent of creating a new record. See 96-ORD-209. Nor is redacting exempt information contained in a database. See 95-ORD-82; 05-ORD-116.
7 KDFWR implicitly relied upon 28 CFR § 20.21 and § 20.33. For example, § 20.21(f)(2) provides that "[a]ccess to criminal history record information system facilities, systems operating environments, data file contents whether while in use or when stored in a media library, and system documentation is restricted to authorized organizations and personnel." According to § 20.30, the "provisions of this subpart of the regulations apply to the III System and the FIRS, and to duly authorized local, state, tribal, federal, foreign, and international criminal justice agencies to the extent that they utilize the services of the III System or the FIRS. This subpart is applicable to both manual and automated criminal history records." § 20.33 identifies the limited parties to which criminal history record information may be released and subsection (b) expressly provides that exchange of such information "is subject to cancellation if dissemination is made outside the receiving departments, related agencies, or service providers identified in paragraphs (a)(6) and (a)(7) of this section."
8 See, for example, 09-ORD-120, pp. 4-5.
9 An FBI identification record, often referred to as a "rap sheet, " is defined at 28 CFR § 16.31 as follows:
a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, includes information taken from fingerprints submitted in connection with federal employment, naturalization, or military service. The identification record includes the name of the agency or institution which submitted the fingerprints to the FBI. If the fingerprints concern a criminal offense, the identification record includes the date of arrest or the date the individual was received by the agency submitting the fingerprints, the arrest charge, and the disposition of the arrest if known to the FBI. All arrest data included in an identification record are obtained from fingerprint submissions, disposition reports, and other reports submitted by agencies having criminal justice responsibilities. Therefore, the FBI Criminal Justice Information Services Division is not the source of the arrest data reflected on an identification record.
10 28 CFR § 20.1 identifies the purpose of the regulations contained in that chapter as being "to assure that criminal history record information wherever it appears is collected, stored, and disseminated in a manner to ensure the accuracy, completeness, currency, integrity, and security of such information and to protect individual privacy."