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 Louisville Metro Police Department violated the Kentucky Open Records Act in partially denying Tom Stone's November 10, 2013, request, directed to Records Custodian Sharon King, for the "last 15 Open Records requests sent to you as the LMPD custodian of records not including any from me" and the "last 5 appeals to the Attorney General, for alleged open records violations, in their entirety, not including any from me." In a timely written response, Ms. King advised that she was attaching 99 pages of responsive documents consisting of the "last 15 open records requests received by LMPD as of Wednesday, November 13, 2013." Ms. King denied the remainder of the request, advising that LMPD is "not the records custodian for the Attorney General," and therefore does not possess any responsive documents. In accordance with KRS 61.872(4), LMPD suggested that Mr. Stone direct his request to the Attorney General's Office and provided contact information for this agency. Mr. Stone initiated this appeal by letter dated December 29, 2013, inquiring as to whether a public agency is permitted to deny a request merely because the record(s) being sought can also be obtained from another public agency.
Upon receiving notification thereof, Sarah Stewart Ashburner, Assistant Jefferson County Attorney, responded on behalf of LMPD. She asserted that Mr. Stone's "persistent requests for potentially voluminous records of marginal public interest -- simply because he can -- place a burden on LMPD and Metro Government resources" and suggested that denial of the request may have been appropriate per KRS 61.872(6); Ms. Ashburner further confirmed that, in any event, LMPD "cannot provide documents which it does not have." Because the latter fact is dispositive, this office makes no finding relative to KRS 61.872(6). LMPD cannot provide nonexistent records for inspection or copying nor can this office declare its failure to produce nonexistent records a violation of the Act. However, the Department for Libraries and Archives has confirmed that neither Records Series L6263 (Open Records Request for Inspection/ Disposition - retain one year, then destroy) nor Records Series L4581 (Open Records Register -- retain five years, then destroy) , 1 both of which appear on the Louisville Metro Records Retention Schedule under Checklist, include appeals of agency denials or the supporting documentation. Unscheduled records must be "retained by the agency until a schedule is established for them." 04-ORD-040, p. 5; 11-ORD-053. Accordingly, this office is obliged to refer this matter to KDLA, consistent with KRS 61.8715, for additional inquiry as that agency deems warranted.
To clarify, "[t]here is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. " OAG 90-71, p. 2, cited in 93-ORD-65 (holding that "if an agency has custody and control of public records it cannot withhold those records simply because they might more appropriately or more easily be obtained from another agency"); 94-ORD-121 (holding that availability of a record in the library of a university did not relieve the university of the duty to release the nonexempt public record) ; 97-ORD-87 (holding that a public agency "cannot withhold public records from an applicant simply because the records may be obtained from another source"); see also 98-ORD-17; 01-ORD-94; 04-ORD-203; 06-ORD-166; 07-ORD-241; 09-ORD-141; 11-ORD-104. These decisions conclusively establish that a public agency cannot avoid its duties under the Open Records Act by deferring to another public agency but must, instead, determine, within three business days of receiving a request for public records within its custody and control whether a statutory basis exists for denying the request and, if so, promptly notify the requester. If not, a public agency must immediately produce the records for inspection or mail copies upon receipt of prepayment for copies and postage. That said, 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. In other words, 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. 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 in the possession of the agency, following a reasonable search if appropriate, just as LMPD ultimately confirmed here.
KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records. Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171. Pursuant to KRS 61.8715, 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. In sum, "the key to records access is effective records management." Id., p. 10. Given the statutorily recognized interrelationship between records management and records access, the instant appeal raises an issue regarding the records management practices of LMPD insofar as it apparently destroyed any responsive documents. The Attorney General "is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." 94-ORD-121, p. 5. However, since July 15, 1994, when amendments to the Open Records Act took effect, this office has applied a higher standard of review to denials based upon the nonexistence of the record(s) being sought. In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 12-ORD-195. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. See 08-ORD-138; 11-ORD-053. Although the record is devoid of any objective basis to suggest bad faith on the part of LMPD, it has not cited authority that would justify destruction of these unscheduled records.
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 KDLA 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 Louisville Metro Records Retention Schedule and the Local Government Records Retention Schedule , a review of which does not reveal any specific reference to such records. Inasmuch as the appeals of the agency's denials of requests made under the Open Records Act have not been scheduled, 2 which LMPD did not advise, this appeal "presents the occasion for [LMPD] to work with the [KDLA] to schedule these and other previously unscheduled records." 04-ORD-040, p. 5. See 94-ORD-121; 07-ORD-182; 08-ORD-138. Although LMPD cannot produce that which it does not have, and is not required to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), and prior decisions of this office applying the rule announced in that case, the fact remains that unscheduled records must be "retained by the agency until a retention schedule is established for them." 04-ORD-040, p. 5; 08-ORD-138; 11-ORD-053. Accordingly, this office is obliged to refer the matter to KDLA in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted.
The Attorney General does not find, as a matter of law, that LMPD violated the Open Records Act by failing to provide Mr. Stone with copies of the records in dispute, but does find that LMPD subverted the intent of the Act, within the meaning of KRS 61.880(4), by failing to establish an effective system for management and retention of its records, "thereby frustrating the public's right of access." 10-ORD-130, p. 5. Ultimately, this office cannot afford Mr. Stone the relief that he seeks; the Attorney General is not empowered to declare the inability of LMPD to produce nonexistent records a violation of the Open Records Act or compel LMPD to maintain a certain type of records for a specific period of time. Inasmuch as the latter prerogative resides with KDLA and the Archives and Records Commission, the Attorney General respectfully defers to those entities regarding the issues raised. 3
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:
Tom StoneSharon KingSarah Stewart AshburnerWilliam P. O'Brien
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