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 Mercer County Sheriff's Office violated the Kentucky Open Records Act in the disposition of James R. May's November 27, 2012, request for "a copy of a CD Disk of phone calls that Officer Matthew Swabey obtained from the Boyle County [D]etention [C]enter during his investigation of James Randall May . . . Police report No. 09-S-097." Mr. May advised that he made said calls while housed in the BCDC. He also requested "a copy of Candace McFerron's recorded statement taken by [Officer] Swabey on May 7th [or] 8th of 2009 in the same case." Having received no response, Mr. May initiated this appeal by letter dated December 11, 2012. Upon receiving notification of his appeal from this office, Mercer County Attorney Ted S. Dean responded on behalf of the Sheriff's Office, initially acknowledging that a written response was not provided "within the permissible timeframe." 1 Mr. Dean was "unwilling to waive any claim as to whether these items are open records under the statute as they were records generated as part of a criminal investigation" and "the case is not finalized." 2 As a "practical matter," he directed the investigating officer to review the case file and was ultimately advised that the requested audio recordings were no longer in the possession of the Sheriff's Office as they were turned over to Commonwealth's Attorney for the 50th Judicial Circuit Richard Bottoms for his review and use in the criminal prosecution. 3 Inasmuch as the Sheriff's Office cannot produce nonexistent records or those which it does not possess for inspection or copying, nor does the Sheriff's Office have to "prove a negative" in order to refute a claim that such records currently exist in the possession of the agency, the denial is affirmed.
The right to inspect records only attaches 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 in affirmatively indicating that no such records exist, or advising that it lacks possession and explaining why, as the Sheriff's Office ultimately did here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. 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, 4 as indicated 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 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 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 having possession or custody of any existing responsive records, or denies their existence, 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.
In responding to Mr. May's appeal, the Sheriff's Office explained why it no longer possesses any existing responsive records. The Sheriff's Office now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. May's claim that such records do exist in the possession of the agency. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), 5 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." 6 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. Such a showing is lacking here.
Assuming the Sheriff's Office 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, in affirmatively indicating that no records were located. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. 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. To hold otherwise would result in the Sheriff's Office "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. However, the analysis does not end there.
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records ." (Emphasis added.) The Sheriff's Office ultimately confirmed that it no longer possesses or maintains the records being sought, and notified Mr. May that any such records would be in the custody of the Commonwealth's Attorney, 7 in substantial compliance with KRS 61.872(4); however, the agency did not provide Mr. May with contact information for that agency. To this extent, its response was deficient. See 09-ORD-029; 11-ORD-137. Inasmuch as the Sheriff's Office is not required to produce that which it does not have, and has explained to Mr. May in writing the reason it lacks possession of the records in dispute, this office must otherwise affirm the agency's denial of Mr. May's request in accordance with governing legal authority.
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:
James R. May, # 095096Ernie KeltyTed S. Dean
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