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 Office of the Commonwealth's Attorney for the 30th Judicial Circuit violated the Kentucky Open Records Act in denying Richard L. Receveur's January 18, 2013, request for a copy of "[w]ritten policies and procedures for prosecution of Capital Offense cases" and "[w]ritten policies and procedures for election to seek the death penalty in Capital Offense cases." In a timely written response, First Assistant Commonwealth's Attorney Mark L. Miller denied Mr. Receveur's request on the basis of KRS 61.878(1)(h), "relating to records or information compiled by this office in criminal investigations or criminal litigation." Quoting the relevant portion of KRS 61.878(1)(h), Mr. Miller advised Mr. Receveur that requests "for information obtained in our investigations" are regularly declined; accordingly, he denied Mr. Receveur's request "for the above-cited investigative material," which otherwise pertains "to criminal litigation." Further, the agency noted, "the Opinion Work Product Privilege would also exempt disclosure of the policies you requested, as would 61.878(1)(i)(G), 1 as any potential policies for [] Mr. Wine's administration" are currently under review. Mr. Receveur initiated this appeal by letter dated February 20, 2013.
Upon receiving notification of Mr. Receveur's appeal from this office, Mr. Miller explained that since taking office January 1, 2013, Thomas B. Wine "has begun the process of reviewing the rules, procedures, directives and general practices of the operation of his office." The previous Commonwealth's Attorney, R. David Stengel, "had a written policy on the death penalty. " Mr. Wine is currently reviewing that policy, Mr. Miller advised, "and has not as of this time, established a written policy on the prosecution of capital offenses. If and when a written policy is established, he concluded "it will be the work product of the office" 2 and will remain exempt per KRS 61.878(1)(h) as "information compiled . . . by Commonwealth's attorneys pertaining to criminal litigation . . . ."
Based upon the following, this office finds that in failing to initially advise Mr. Receveur that no responsive records currently existed, the Office failed to discharge its duty; however, the Office is not required to produce nonexistent records, nor is the Office expected to "prove a negative" in order to refute a claim that certain records existed at the time of the request 3 under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). See 11-ORD-081. Because the Office ultimately advised that no responsive records currently exist, and explained why, this office finds no error in the agency's final disposition of the request in the absence of any objective proof that such records actually exist. Mr. Receveur has not cited any statute, regulation or case law that would require creation of such records in a certain time frame. 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, nor is this office "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. See 12-ORD-035 (Open Records Act does not impose a records creation requirement on public agencies).
As the Attorney General has consistently recognized, a public agency cannot produce 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. 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 as the Office ultimately asserted here. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98.
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 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 (s), and, if so, whether the record(s) is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). As previously indicated, 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. Receveur's appeal, the Office affirmatively indicated that no records matching the description(s) provided currently exist. It now finds itself in the untenable position of having to "prove a negative" in order to conclusively refute a claim to the contrary. Addressing this dilemma, in Bowling , above, 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." 5 Id. at 341. 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 records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency when the request was received. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189.
While Mr. Receveur's assumption that such policies and procedures existed was not unreasonable, and the agency is apparently in the process of creating policies and/or procedures, the fact remains that he "produced no affirmative evidence . . . that the agency possesses such records as he has requested," and thus "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; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Under the circumstances presented, this office is not inclined to ask the agency to "prove a negative . . . 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. 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). This office is not empowered to order a public agency to create records "or declare its failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 12-ORD-162, pp. 2-3.
Assuming that the Office made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," to the extent appropriate or necessary on these facts, the Office belatedly complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no such records were located and explaining why. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; 10-ORD-222. To hold otherwise would result in the Office "essentially hav[ing] to prove a negative" in order to conclusively establish that no responsive records currently exist. 07-ORD-190, p. 7; 08-ORD-265 (affirming denial of request because public agency did not currently possess records containing the requested information). In the absence of the requisite prima facie showing, or any facts or evidence to contradict Mr. Miller's explanation, this office must affirm the agency's denial of Mr. Receveur's request in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-188, 08-ORD-265, and 10-ORD-222.
That said, however, this office is compelled to note that in defining the statutory obligations of a public agency when denying access to public records based on their nonexistence, the Attorney General has also consistently recognized that "it is incumbent on the agency to so state in clear and direct terms" and that "a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (citations omitted). If the agency has affirmatively indicated that no responsive records exist, nothing else is required in the absence of a prima facie showing to the contrary (or a statute, regulation, or case law mandating creation of the record); however, the Office did not initially deny Mr. Receveur's request based on the nonexistence of the records, asserting instead that any responsive policies or procedures would qualify for protection under authority of KRS 61.878(1)(h) 6 and the work product doctrine (codified at CR 26.02). In short, when a record for which inspection is being sought does not exist, "the agency should specifically so indicate." OAG 90-26, p. 4. See 09-ORD-019. Accordingly, this office concludes that while the Office obviously cannot produce for inspection or copying that which it does not have or which does not exist, inasmuch as the Office initially failed to affirmatively indicate as much to Mr. Receveur 7, its original response was procedurally deficient. The agency's ultimate disposition of the request is affirmed for the reasons previously stated.
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:
Richard L. ReceveurMark L. Miller
Footnotes
Footnotes
1 The Office presumably intended to reference KRS 61.878(1)(j) in addition to 61.878(1)(i), as 61.878(1)(g), relating to test questions, scoring keys, and examination data, is facially inapplicable. With regard to application of KRS 61.878(1)(i) and (j) generally, the parties may wish to review, for example, 11-ORD-108, pp. 9-11. Inasmuch as the Office later advised that no responsive records currently exist in the possession of the agency, further discussion is unwarranted.
2 Records which are the work product of an attorney prepared or collected in anticipation of litigation or when advising a client are not discoverable under CR 26.02 and, therefore, may be withheld under the Open Records Act. This doctrine, authority for which is derived from KRS 447.154, is codified at CR 26.02(3). See 07-ORD-147, pp. 8-10, for application of the work product doctrine in the context of an Open Records dispute generally.
3 In 94-ORD-52, the Attorney General observed:
This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management, or, in this instance, the purported failure of a public agency to generate a given record in a timely fashion. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the document in its possession at the time the request is submitted? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 93-ORD-51. The question of whether a document "should" exist is not cognizable under the Open Records Act.
Id., p. 3 (emphasis added); 93-ORD-55; 07-ORD-126; 10-ORD-222.
4 See KRS 61.8715.
5 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."
6 Inasmuch as the Commonwealth's Attorney has not yet developed responsive policies and procedures, the Attorney General makes no finding as to whether the protection of KRS 61.878(1)(h), generally invoked relative to records pertaining to a specific criminal investigation or action (see 00-ORD-116), also extends to such records.
7 The Office may have intended to imply as much in advising that any "potential policies" were currently under review; however, in order to discharge its duty a public agency is required to state "in clear and direct terms" that responsive records do not currently exist. 02-ORD-144, p. 3; 09-ORD-019.