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 Kentucky State Police violated the Kentucky Open Records Act in denying the January 22, 2013, request of Department of Public Advocacy Investigator Brad Milburn for a copy of the following:
1. A list or log of any evidence remaining in the custody of the lab from the Hopkinsville Police Department case # 910203010, Commonwealth vs. Charles Bussell[;]
2. A copy of the CV Competency tests and files, proficiency tests results, proficiency tests files, personnel files, certifications and number of times qualified as an expert for all lab technicians that worked on the case[;]
3. Any reports completed in connection with the case, including lab files, reports, bench notes, photos/diagrams and data. All correspondence, including e-mails and chain of custody documents[;]
4. A copy of the Standard Operating Procedures Manual for the lab, Coverdell Investigation Documents, interpretation guidelines, audit reports, internal and external audit reports, validation studies, corrective action documents, quality control-assurance manual, training manual, user manual and maintenance records.
In a timely written response, KSP Official Custodian of Records Emily M. Perkins denied Mr. Milburn's request, initially observing that said records "pertain to a criminal case that has a post-conviction relief appeal pending." Ms. Perkins further noted that OAG 83-356 states that a "'criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken.'" Citing prior decisions by this office ranging from 2004 to 2011, she correctly asserted that denials by KSP based upon the subject investigations being characterized as open "due to pending or future prosecution or pending appeals" have been consistently upheld. Relying upon that line of authority, KSP denied the request per KRS 17.150(2) and 61.878(1)(h). In addition, KSP advised that "the reports requested relate to DNA analysis." Accordingly, KSP denied the request as to any responsive laboratory reports per KRS 17.175(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), "which states that records produced from DNA samples shall be used only for law enforcement purposes and shall be exempt from the provisions of Chapter 61[.]"
Assistant Public Advocate Krista A. Dolan subsequently initiated this appeal because "Mr. Bussell's case is not open; his case has been final since September 15, 2011." Ms. Dolan further argued that "provisions cited with respect to the lab results are irrelevant to the records requested." She challenged the failure of KSP to cite any basis for denying access to records unrelated to Mr. Bussell's case, i.e., any responsive to Items 2 and 4 of the request. In terms of background, Ms. Dolan explained that Mr. Bussell is currently serving a sentence of life without parole for twenty-five (25) years at Kentucky State Penitentiary. In 1991, he was convicted and sentenced to death for the murder of Sue Lail. The Kentucky Supreme Court affirmed his conviction and sentence in 1994. Following an RCr 11.42 motion he was granted a new trial. His 2008 trial resulted in a mistrial but Mr. Bussell had a third trial and was sentenced to life without parole for 25 years for the murder and 20 years for the robbery in connection therewith. The Supreme Court affirmed that conviction and sentence on August 25, 2011, and the case was "final" on September 15, 2011. He filed an RCr 11.42 motion challenging his conviction and sentence on November 21, 2012.
In her appeal Ms. Dolan maintained that KSP failed to demonstrate the harm that would result from disclosure as required to justify its reliance on KRS 61.878(1)(h). She further contended that release of the investigatory records "would be far from premature" given that such records have "already been released multiple times," and much of the evidence already consumed, in the course of Mr. Bussell's three separate trials. Because none of the records in dispute "contain hearsay or uncorroborated allegations," protection of which generally weighs in favor of nondisclosure, but instead contain "factual data and scientific test results," according to Ms. Dolan release thereof would not "impede an investigation." Ms. Dolan also disputed that a pending RCr 11.42 motion constitutes a "prospective law enforcement action" for purposes of KRS 61.878(1)(h) and maintained that many of the decisions upon which KSP relied in denying the request are factually distinguishable. Finally, she challenged the agency's invocation of KRS 17.175(4), arguing that KRS 422.285(5), which addresses DNA testing in post-conviction death penalty cases admittedly does not apply to non-capital cases, but "the general principles of that statute must." At a minimum, she correctly argued, a "blanket denial" of the request was inappropriate as KSP cited no basis for denying Items 2 and 4.
This office finds that 09-ORD-104, adopted in several recent decisions, including, for example, 12-ORD-004 and 12-ORD-198, and premised on Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), validates the position of KSP and is controlling on the question presented as to Items 1 and 3 of the request. 1 11-ORD-165; 12-ORD-024; 12-ORD-045. Here, as in 09-ORD-104, "[b]ecause [the] requested investigative records related to a criminal conviction from which post-conviction relief could still be obtained, under applicable case law the conviction was not final for purposes of the Open Records Act. " 09-ORD-104, p. 1. KSP apparently neglected to conduct a search for any documents responsive to Items 2 and 4 of the request, and thus initially failed to advise Ms. Dolan that that any such documents were never created or no longer exist, or explain why as required to satisfy its burden of proof under KRS 61.880(1) and 61.880(2)(c). 2 See 11-ORD-113 (agency's initial response was deficient as it contained "no indication that a search of any kind was conducted, let alone the requisite description of the search methods employed"), a copy of which is attached hereto and incorporated by reference. KSP cannot produce that which it does not have, nor is the agency required to "prove a negative" in order to refute an unsubstantiated claim that records responsive to Items 2 and 4 exist under governing case law.
In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed that "[i]n order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or a public agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Id., pp. 1-2. Unlike the other exceptions, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[,]" which "imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met." 95-ORD-95, pp. 2-3. See 00-ORD-196; 11-ORD-069.
In University of Kentucky v. Courier-Journal & Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 3 Given the statutory mandate of strict construction found at KRS 6l.871, and the explicit prohibition against using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency can successfully invoke KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three parts of the test codified therein. KSP is unquestionably a law enforcement agency and the only existing public records responsive to Items 1 and 3 appear to have been compiled in the process of detecting statutory violations; accordingly, the only question is whether KSP has adequately demonstrated the harm that would result from disclosure of those records. Based upon the following, this office concludes that KSP has done so.
Unless exempted by other provisions of the Open Records Act, "public records exempted under [KRS 61.878(1)(h)] shall be open after enforcement action is completed or a decision is made to take no action." Similarly, KRS 17.150(2) provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." A showing of harm is not required to successfully invoke KRS 17.150(2) as the basis for denying access to records which fall into this category. 10-ORD-094, p. 8. Early on, the Attorney General analyzed the underlying purpose of KRS 17.150(2) and its "companion statute," KRS 61.878(1)(h), observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 citing Privacy: Personal Data and the Law, National Association of Attorneys General (1976). More recently, this office determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2. Significantly, both KRS 17.150(2) and KRS 61.878(1)(h) "recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made." 04-ORD-114, p. 9. Based on a line of decisions/opinions dating back to 1976, affirmed in Skaggs v. Redford , above, and reaffirmed by the Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), this office has consistently recognized that investigative records may be withheld "so long as the possibility of . . . judicial proceedings in this case remains a significant prospect." Skaggs at 391. See 05-ORD-246; 06-ORD-190; 07-ORD-140; 11-ORD-195; 12-ORD-029.
In 09-ORD-104, the Attorney General upheld a denial by the Fort Thomas Police Department of a request for investigative records pertaining to a homicide prosecution which resulted in the defendant's conviction. 4 Under the sentencing agreement entered into by the parties, the defendant waived her right to appeal. In rejecting the newspaper appellant's claim that the defendant's waiver of her appeal rights meant there was no significant prospect of further judicial proceedings, the Attorney General reasoned:
The Supreme Court in Skaggs gave no definition of what constitutes a "significant prospect" of further judicial proceedings. Yet the Court did unanimously hold "that the defense of ? prospective habeas corpus proceedings is part of the 'law enforcement action'" and that the "legitimate state interest ? in prosecuting [an offender] is not terminated until his sentence has been carried out." 844 S.W.2d at 390. [Footnote omitted.] Since the convicted offender, and not the law enforcement agency, is in sole control of whether and when any motions for post-conviction relief will be filed, we can see no reasonable place to draw the line of "significant prospect" other than where it was drawn by the Court in Skaggs.
09-ORD-104, p. 5, 6; 12-ORD-004; 12-ORD-024; 12-ORD-095. The Attorney General ultimately concluded that the Department had "sufficiently, if briefly, explained the potential harm that would result from the release of the investigative file." Id. at 6; 12-ORD-004. That harm was postulated on the possibility of remand for a retrial and the harm to the prosecution that could result from disclosure of records not utilized in the original trial of the case.
Because the instant appeal presents no basis for departing from the reasoning contained in 09-ORD-104 and its progeny, this office reaches the same result as to Items 1 and 3 of the subject request. See 12-ORD-004. As in those decisions, evidence has been presented that a motion for post-conviction relief is pending (or imminent) here; accordingly, this office again concludes that KSP properly denied the request for investigative records on the basis of KRS 61.878(1)(h). 5 See 10-ORD-094; 12-ORD-004. Until this issue has been conclusively resolved in the courts, the Attorney General "will continue to abide by our prior decisions as reflected in 09-ORD-104." 12-ORD-004, p. 4.
Upon receiving notification of Ms. Dolan's appeal from this office, KSP Staff Attorney Heather Wagers reiterated the agency's original arguments relative to KRS 17.150(2) and 61.878(1)(h). With regard to Item 2 of the request, Ms. Wagers advised that KSP "does not have a copy of any of the information requested[.]" Ms. Wagers explained that "lab technicians that worked on the case are no longer employed by the agency and records are not maintained for them as they are not current employees." Upon "information and belief," Ms. Wagers continued, "the individuals in question retired or left our agency" between 1998 and 2001. Referencing a line of prior Open Records Decisions, KSP correctly argued that "a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have." KSP characterized Item 4 of Mr. Milburn's request as "overbroad and vague" insofar as he did not specify whether he was requesting "a copy of existing manuals and documents from the lab or if his request is for the time period the lab examination was conducted pertaining to Mr. Bussell." 6 Assuming the latter is true, Ms. Wagers advised that KSP "did not have a training manual or [SOP] Manual during this time period and therefore, have no records to produce." Similarly, KSP does not have any Coverdell Investigation Documents, 7 interpretation guidelines, etc. from that time period. Thus, KSP also relied upon the aforementioned line of decisions in denying the request as to Item 4.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. 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 Act in affirmatively indicating that certain records do not exist following a reasonable search, as KSP ultimately asserted here. 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, at KRS 61.8715, 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 disputes arising under the Open Records Act are thus generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record (s), and, if so, whether the record(s) 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.
Pursuant to KRS 61.8715, the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8. "[T]he key to records access is effective records management." Id., p. 10. In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. KSP failed to reference any legal authority to justify its apparent destruction of any personnel files, etc. responsive to Item 2; however, a review of the applicable records retention schedule validates the agency's position that no such records currently exist.
Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies." Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and the Kentucky Department for Libraries and Archives with the duty to "assist state and local agencies in applying such standards to records in their custody." KRS 171.530. Of particular significance, the Commission exercised this authority in creating the State Agency Records Retention Schedule, 8 a review of which reveals that Records Series P0001, "Personnel Folder -- Agency Copy (Official copy in Personnel Cabinet)," provides that "[i]f an employee's master personnel file is maintained by a separate agency, destroy five (5) years after termination of employment. Should an employee transfer to another state agency, the Personnel Folder will transfer, as well, to the new agency.'" If the master copy of an employee's personnel file is not maintained by a "separate agency" (Personnel Cabinet for Chapter 18A employees), the "Retention and Disposition" instructions require the agency to "retain for seventy (70) years, then destroy." Records Series P0002, "Personnel Record -- Division and/or Subunit Duplicate," is "the division or subunit duplicate of the personnel file, which is maintained as a working record while the employee is a current member of the staff" and is "maintained at the discretion of the agency." State agencies must "[r]etain no longer than two (2) years after termination of employment in the division or subunit. Agencies should set a definite retention period for these files." KSP failed to clarify whether all of the records responsive to Item 2 were contained in the personnel files of the former employees and explain if or when the files were destroyed, or pursuant to what authority if so. Notwithstanding this deficiency, it appears that KSP would have properly destroyed any records responsive to Item 2 of the request in the normal course of business and, therefore, its denial based on their nonexistence was otherwise proper.
Having denied that records responsive to Items 2 and 4 of the request currently exist, KSP now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that such records exist in the possession of the agency. Bowling, above, at 340-341(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"). Addressing this dilemma, the Court in Bowling observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim], he or she must make a prima facie showing that such records do exist." 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 to the contrary. See 07-ORD-188. No showing has been made as to Items 2 and 4.
This office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." 11-ORD-074, p, 3. To ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. The Kentucky Court of Appeals approved this position recently in Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), declaring that when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence. " However, Ms. Dolan has not cited any objective proof or persuasive authority to refute KSP's position as to Item 4. See 12-ORD-209 (requester not entitled to explanation for inability of agency to produce records in absence of any legal authority requiring agency to create, possess, or maintain the records). Independent research confirmed that records responsive to Item 2 would have been properly destroyed years before the subject request. Because Ms. Dolan "has produced no affirmative evidence" that KSP currently possesses any such records, the Attorney General does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4; see 11-ORD-037 (denial of request upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091. With the exception of the deficiency noted above, this office affirms the agency's denial.
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:
Krista A. DolanEmily M. PerkinsHeather Wagers
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