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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 Mt. Vernon Police Department violated the Kentucky Open Records Act in the disposition of Michael Sheliga's January 13, 2012, request to inspect six categories of records and information relating to David Blackburn's 1 "recent DUI arrest. " MVPD partially complied with Mr. Sheliga's request, and his appeal focuses exclusively on the agency's denial as to "In-Car videos associated with arrest" and "photos of Mr. Blackburn and his vehicle." (Original emphasis.) Because MVPD, through its legal counsel, agreed to provide Mr. Sheliga with access to existing responsive photographs in response to his appeal, 2 the related issues are moot per 40 KAR 1:030, Section 6; 3 accordingly, the remaining question is whether MVPD violated the Open Records Act in denying Mr. Sheliga's request to view the "in-car video" because no such record was ever made. Although MVPD initially failed to satisfy its burden of proof under KRS 61.880(2)(c) 4 by explaining the reason for the nonexistence of the video, notwithstanding a mark on the uniform citation which indicated that a video was made, MVPD belatedly cured this omission. Because MVPD cannot produce a nonexistent record for inspection or copying, and has now provided a credible explanation for the apparent discrepancy, this office has no basis upon which to find that MVPD committed a substantive violation of the Act. MVPD cannot produce a nonexistent record nor is the agency required to "prove a negative" under governing case law; likewise, this office is not empowered to resolve a dispute concerning a disparity between the records being sought and those provided.

In responding to Mr. Sheliga's request for the in-car video of Mr. Blackburn's arrest, MVPD indicated "[t]here is no in car video of the arrest of David S. Blackburn." On appeal Mr. Sheliga acknowledged that "public agencies cannot provide records that do not exist." However, Mr. Sheliga questioned how MVPD could make such a claim here given that "[t]he 'in-car video' box is checked on the citation, while other boxes for 'fingerprints,' etc. were not." Additionally, Mr. Sheliga "believe[s] there were 4 to 6 MVPD cars at this incident, and that some MVPD cars have video. " 5 Thus, in his view "it seems likely" that "at least a portion of this incident was on some police car's video. "

Upon receiving notification of Mr. Sheliga's appeal from this office, Jerry J. Cox, legal counsel for MVPD in this matter, confirmed with regard to his request for the in-car video that "there simply is not one." Mr. Cox acknowledged that "the ticket shows the box checked showing there was a video and the cars themselves have such equipment; however, the video must be activated by the officer, which was not done in this case." The reason the box is checked, Mr. Cox advised, "is that this is a computer generated form with the box already checked." Mr. Cox has "instructed the officers to correct this so this matter will not arise again."

In response to a request for additional clarification regarding Mr. Sheliga's belief that "5 to 6 cars" were present at the scene, and thus at least one car with video capability "likely" recorded the arrest, Assistant Chief Barry Adams ultimately confirmed via e-mail dated February 12, 2012, that four to six cars were not, in fact, present during the arrest. Chief Adams also reiterated that "although the in-car video box was checked in the citation, there was no video made by any officer at the scene" contrary to Mr. Sheliga's belief. Rather, "a total of three Mount Vernon police vehicles" were present at the scene. According to Chief Adams, one Mt. Vernon police vehicle "made the initial stop which was the arresting officer and one other Mount Vernon Police Officer arrived later with me being the last Mount Vernon Police vehicle to arrive." Chief Adams further explained that his vehicle "is not equipped with [an] in-car camera." The arresting officer's patrol car "is equipped with an in-car system which was not activated, although on the arrest citation the in-car box is marked. This box on the electronic citation system has several boxes which are pre-filled with information such as the officers name [sic], badge number and other items such as agency identifiers." Finally, Chief Adams reaffirmed that the arresting officer mistakenly checked this box.

MVPD has repeatedly advised that no responsive video recording (s) exists. On appeal the agency satisfied its burden of proof under KRS 61.880(2)(c) by refuting the facts upon which Mr. Sheliga based his assumption that such a recording (s) must have been made. MVPD cannot produce a nonexistent recording (s) for inspection or copying nor is the agency required to "prove a negative." Based upon the following, this office affirms the final disposition of Mr. Sheliga's request by MVPD.

A public agency such as MVPD cannot provide a requester with access to a nonexistent record(s) or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. The right of inspection attaches only if the record(s) being sought is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. 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 in affirmatively indicating that no such record(s) exists just as MVPD has repeatedly asserted in this case. On many 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, 6 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 record(s) 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 record(s) in dispute 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 record(s) exists, 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. 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.

The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling, above, at 341. Addressing this dilemma, in Bowling the 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." 7 Id. 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. Mr. Sheliga attempted to make such a showing here, relying upon the uniform citation which indicated that a video recording was made.

In short, Mr. Sheliga provided "affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested"; however, the fact remains that "we do not have a sufficient basis on which to dispute the MVPD's representation that no such records" were actually made in this instance, particularly in light of the agency's belated yet credible explanation for the seeming discrepancy upon which Mr. Sheliga relied. 09-ORD-214, pp. 3-4. See 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); see also 11-ORD-118. Compare 11-ORD-074 (recognizing that the "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"); 11-ORD-036. MVPD cannot produce that which it does not have nor is MVPD required to "prove a negative." To hold otherwise would contravene governing legal authority.

MVPD initially failed to provide any explanation for the nonexistence of the requested video recording (s); however, the agency did so in responding to Mr. Sheliga's appeal. This office affirms the agency's final disposition of Mr. Sheliga's request in accordance with Bowling , above, and prior decisions of this office such as 11-ORD-014, 11-ORD-037, 11-ORD-122, and 11-ORD-091. See also 07-ORD-188; 07-ORD-190; 08-ORD-015. As the Attorney General has long recognized, this office cannot "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 other words, to the extent Mr. Sheliga questions the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3; 02-ORD-89; 04-ORD-032; 06-ORD-042; 09-ORD-101.

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:

Michael SheligaBarry AdamsJerry Cox

Footnotes

Footnotes

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