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 Personnel Cabinet violated the Kentucky Open Records Act in the disposition of Christine Johnson Goodmann's December 12, 2011, request for a "[r]ecord of all incoming phone calls to Christine J. Goodmann's phone at 502-564-5973 on April 14, 2010." 1 In a timely written response, Executive Director Dinah T. Bevington, Office of Legal Services, advised Ms. Goodmann that her December 12 request was denied "as no such records exist." Citing 98-ORD-200, Ms. Bevington explained that her request "was referred to the Personnel Cabinet, Network Support Branch and the Commonwealth Office of Technology (COT) for processing. COT advised no records exist which meet the parameters of your request."
On appeal, Ms. Goodmann noted the discrepancy between the April 14, 2010, date specified on the request and the April 13, 2010, date appearing on the agency's response. Because the Cabinet has confirmed that a search was conducted using the correct date of April 14, and promptly clarified as much to Ms. Goodmann by letter of December 20, 2011, this office finds no error in the ultimate disposition of her December 12 request. A public agency such as the Cabinet is not required to produce nonexistent records for inspection or copying, nor is the Cabinet obligated, under existing case law, to "prove a negative" in order to refute a claim that certain records actually exist. Because Ms. Goodmann "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [she] has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4.
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. Rather, 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. Thus, 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 Cabinet has twice 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, 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; 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 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 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). 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 absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to Ms. Goodmann's request and her appeal, the Cabinet affirmatively indicated that no records matching the description provided exist. The Cabinet now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Goodmann's claim that such records do 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 records in the absence of a prima facie showing that 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. Ms. Goodmann has not attempted to make such a showing here.
The analysis contained in 07-ORD-190 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. Assuming the Cabinet 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, it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no records were located. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption). To hold otherwise would result in the Cabinet "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. See also 11-ORD-024; 11-ORD-137. In the absence of the requisite prima facie showing, or any evidence to suggest that such records were created or maintained in this case, the Attorney General affirms the Cabinet's disposition of Ms. Goodmann's December 12 request in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-190.
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:
Christine Johnson GoodmannDinah T. Bevington
Footnotes
Footnotes
1 Although Ms. Goodmann also essentially challenged the accuracy and completeness of the record(s) provided in response to her separate but related November 28, 2011, request in her undated Open Records Appeal, the response to which Ms. Goodmann enclosed along with a copy of the "Voice Billed Usage Details" report for Dera Lindsay, whose telephone records for April 1, 2010, through April 29, 2010, she apparently requested, Ms. Goodmann failed to include a copy of her original written request per KRS 61.880(2)(a). This office is therefore precluded from issuing a decision regarding this request. Even if the requisite documentation was provided, this office is unable to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3.
In 05-ORD-236, the Attorney General expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." Id., p. 3 (reporter questioned the validity of invoices produced in response to request, and the Attorney General advised that relief sought was unavailable under the Act). See 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records but Attorney General refused to consider this issue); see also 05-ORD-008. Notwithstanding this fact or the deficiency noted above, the Personnel Cabinet ultimately outlined in detail the steps taken to locate any responsive records, and provided an affidavit confirming that no electronic records prior to August 2010 are, in short, currently accessible; however, the agency did locate hard copies of records "previously printed and stored in the ordinary course of business," which "reflect the billed voice usage and no other records exist regarding this blackberry account" for the specified time period. To the extent no responsive records exist, our analysis regarding the Cabinet's disposition of Ms. Goodmann's December 12 request is equally applicable. If Ms. Goodmann has evidence to suggest the Cabinet willfully concealed or tampered with records, she may wish to consider the options available under KRS 61.991(2)(a); however, such issues cannot be resolved in this forum and the record on appeal does not contain any evidence of such wrongdoing. 09-ORD-095.
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2 See KRS 61.8715.
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."