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 Lexington-Fayette Urban County Government (LFUCG) Division of Police violated the Kentucky Open Records Act in denying Bryan Price's May 17, 2013, request for "phone records or paper records" from "2006-2007-2008-2009" pertaining to a purported incident which occurred in the parking lot of the Kroger located at 3101 Richmond Road, Lexington, Kentucky, 40509, and involved his blue Honda Civic, for which Mr. Price included the Vehicle Identification Number (VIN). By letter directed to Mr. Price on that same day, Assistant Records Custodian Marcia Woodyard advised that his request "was vague and unclear." When Officer Aaron Kidd spoke to you by telephone, Ms. Woodyard continued, he "determined your request was not for specific documents." Ms. Woodyard also confirmed, as Officer Kidd had stated verbally, that a public agency is "not required to do research and compilation," relying upon prior decisions by this office. 1 Additionally, Ms. Woodyard explained to Mr. Price, insofar as you referenced the possibility of being a suspect during your conversation with Officer Kidd, "records pertaining to ongoing investigations are not subject to" disclosure under the Act per KRS 61.878(1)(h). Ms. Woodyard clarified that she was not indicating whether "there is or is not an open investigation," but "just wanted to clarify this reference from the phone conversation that you and Officer Kidd had today." By letter dated June 1, 2013, Mr. Price initiated this appeal, focusing on records "for 2007 and 2008" and requesting assistance "in obtaining my police complaint records" because the "police officer typed my license plates while he was following me when I departed the grocery store" and "I feel like I was harassed. " Upon receiving notification of Mr. Price's appeal from this office, Michael R. Sanner, Attorney Senior, responded on behalf of the Division, essentially reiterating the agency's original response but clarifying that Mr. Price "is not a Complainant in any criminal matter which would allow him to receive his victim's copy of a police report." 2
Based upon the following, this office finds the Division's original response was deficient insofar as it failed to indicate whether any type of reasonable search was conducted to identify and locate potentially responsive records; however, this office affirms the Division's final disposition of Mr. Price's request as the agency satisfied its burden of proof under KRS 61.880(2)(c) on appeal in confirming that a reasonable search was conducted for potentially responsive records and notifying Mr. Price that none were located. The Division cannot produce nonexistent records for inspection or copying nor is the agency required to "prove a negative" in order to refute Mr. Price's unsubstantiated claim that responsive records were created or currently exist. 3
Following a series of telephone calls and written correspondence between the parties, 4 Officer Kidd elaborated upon the agency's ultimate position that no responsive records exist, by letter dated June 24, 2013, as follows:
On May 17, 2013 my office received an open records request from Bryan Price. The request was unclear not identifying personal information like the date of birth, social security number as well as not clarifying what specific records were being requested. I used the address in his contact information to determine the person which was making the request and searched our Computer Aided Dispatch (CAD) for records pertaining to the dates and location listed on his request. None were found.
That same day I called Mr. Price from my office for clarification concerning his request. In the phone conversation Mr. Price did not identify any specific record he was requesting but rather focused on the Kroger stores in Lexington, alluding to being a suspect in some illegal behavior. I informed him that Kroger is private property. Then I suggested he may need to complain to management if he felt he is being unjustly accused or harassed. At no time did I identify Mr. Price as being a suspect in a [LFUCG] investigation but did state that information pertaining to ongoing investigations is not released nor is it subject to open records request[s]."
At the conclusion of our conversation, no specific request was ever determined, nor was I able to identify any record in our database that met the parameters of the written or verbal request. I instructed my assistant to respond accordingly and to reference my phone conversation and the KRS concerning ongoing investigations in the response letter.
Since that time, Mr. Price has mailed additional requests to our office, none of which have clarified his request. Each time we have responded with a letter stating that the records he is requesting do not exist because there is no record of an incident involving Mr. Price or his car on Kroger property during the years listed. The only records of the car by VIN number or plate kept in the CAD are pertaining to a case or case report. In the letter dated 6/14/2013 Mr. Price referenced phone conversations which he was sure were taped, but we do not have audio recordings or written (other than referenced in letters) documentation of these calls. We again noted this in the response dated 6/17/2013.
We have spent time on the phone seeking clarification, time researching our database and exhausted all resources and can still find no records to provide Mr. Price within the parameters of his request. In response to his open records request, we cannot provide documents that do not exist.
Because Mr. Price "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he 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. The Attorney General has long 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. With regard to statutory obligations of a public agency upon receipt of request for nonexistent records generally, the analysis contained in 13-ORD-024 is controlling; a copy of that decision is attached hereto and incorporated by reference. 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 records requested at a minimum. See 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 during the specified time frame). When, as in this case, a public agency denies that any such records exist, and the record on appeal (if not initially) supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. However, in responding to Mr. Price's request initially the Division did not indicate that any type of search was conducted to locate potentially responsive records or advise that no responsive records existed; accordingly, the Division initially failed to satisfy its burden of proof under KRS 61.880(2)(c). See 06-ORD-207.
In determining whether a public agency has adequately searched for public records, the Attorney General applies the standard first articulated in 95-ORD-96 as follows:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, above at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. . . . In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id., p. 7 (Emphasis added.) The initial response by the agency contains no indication that a search of any kind was conducted or, consequently, the requisite description of the search methods employed. In 10-ORD-051, a copy of which is attached hereto and incorporated by reference, this office determined that the record on appeal contained insufficient proof that the agencies to which requests were directed had conducted an adequate search for the records in dispute. This office ultimately concluded that the Attorney General could not "approve agencies' denials based on the records' apparent nonexistence in the absence of such proof." 10-ORD-051, p. 1; see 07-ORD-224. Accordingly, in failing initially to "make a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," or advise Mr. Price in writing of the steps taken to identify and locate potentially responsive records if the agency had, in fact, conducted such a search, the Division violated the Open Records Act. 11-ORD-031, p. 3, citing 95-ORD-96, p. 7; see 11-ORD-036 (copy enclosed).
That said, Officer Kidd ultimately satisfied the agency's burden of proof under KRS 61.880(2)(c) in advising that no existing records fall within the parameters of Mr. Price's request and explaining the steps taken by the agency to identify and locate any potentially responsive records before reaching that conclusion. The Division cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188. The record on appeal is devoid of any showing. However, in order 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 has recognized 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. No such authority has been cited or implicated here nor has any objective proof been offered to refute the Division's position. In the absence of the requisite prima facie showing, or any evidence to suggest that responsive "phone records or paper records," i.e., "dispatcher complaints" were created or maintained, this office affirms the agency's final disposition of Mr. Price's request in accordance with existing legal authority. See 11-ORD-081; 11-ORD-091.
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:
Bryan PriceMarcia WoodyardMichael R. SannerAaron Kidd
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