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 Breckinridge County Sheriff's Office violated the Kentucky Open Records Act in denying Elaine Matthews' January 27, 2014, request for "any and all records regarding an incident on December 9, 2012 on US Highway 60 near Guston-Bewleyville Road, in Meade County, of an attack on a woman and/or of a theft to that woman's personal property that came directly to you." Ms. Matthews clarified that her written request was intended to "cover and involve all and any outgoing calls from Breckinridge County's 911 to Meade County's 911 and/or to any other law enforcement agency and/or agencies pertaining to the aforesaid incident[,]" between approximately 3:45 p.m. and 5:00 p.m. on December 9, 2012. In a timely written response, Sheriff Todd Pate and Breckinridge County 911 Coordinator Rick Martin jointly confirmed receipt of Ms. Matthews' request but advised, "we are unable to provide any telephone recording (s) pertaining to this incident due to the fact that our recording system was inoperable for approximately two months." They further explained that "if a call came into the Breckinridge County Dispatch Center and was transferred to another dispatch center in a different jurisdiction, there would not necessarily be documentation of that transfer." We have searched for any responsive documentation, they continued, "and have not been able to locate any information pertaining to the time and date of your request." Questioning the plausibility of the agency's position that a 911 recording system was inoperable for a period of two months, and maintaining that "[s]ome verification of that representation would be in order," Ms. Matthews promptly initiated this appeal.
The Sheriff's Office cannot produce a nonexistent recording or documents for inspection or copying nor is the agency required to "prove a negative" in order to refute a claim that certain records exist under governing case law in the absence of any existing legal authority mandating their creation or any objective proof that such records were created to begin with. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); see also 07-ORD-188; 12-ORD-087; compare 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. Because the Sheriff's Office ultimately satisfied its burden of proof under KRS 61.880(2)(c) by providing a credible explanation for the nonexistence of the subject recording, in addition to documentation substantiating its position regarding the inoperability of the recording system during the relevant period of time, and provided a credible explanation for the nonexistence of any responsive documentation as well, this office affirms the agency's final disposition of Ms. Matthews' request. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 06-ORD-098; 09-ORD-101. 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.
Upon receiving notification of Ms. Matthews' appeal from this office, Breckinridge County Attorney Bradley S. Butler responded on behalf of the Sheriff's Office. 1 Mr. Butler advised, in relevant part, as follows:
Unfortunately, the Breckinridge County 911 Dispatch recording system was not operating on or about December 9, 2012, as indicated by the service report from Radio Communications Systems, Inc. dated December 26, 2012, a copy of which was included with the Sheriff's response dated February 1, 2014 and hereto attached[.]" Please observe the highlighted portion which states: "12/20/12 The tech found a bad power supply in DI. He purchased one from Best Buy to get unit running. DI had been offline since 11/8/12 at 5:00 a.m. All check OK now."
Sheriff Pate further caused the Breckinridge County 911 Dispatch manually entered logs to be reviewed in an attempt to find any other recorded information pertaining to the alleged incident which occurred on or about December 9, 2012. However, because the alleged incident occurred in Meade County rather than Breckinridge County, any calls received by the Breckinridge County 911 Dispatch pertaining to the alleged incident would have been immediately routed to the Meade County 911 Dispatch. Furthermore, . . . Ms. Matthews was advised that the rerouted calls would have been recorded by the Meade County 911 Dispatch and that she could obtain the requested information from that office.
Citing 12-ORD-110, Mr. Butler correctly asserted that a public agency "cannot and does not have a duty to provide a requester with access to nonexistent records or those which it does not possess." Accordingly, he argued that Sheriff Pate had fully discharged his duties under the Open Records Act.
In reply, Ms. Matthews acknowledged that the Sheriff appeared to have substantiated the assertion that Breckinridge County's 911 recording system was inoperable on the date in question and that "when something in fact does not exist that then it cannot be provided." However, she requested clarification as to how, on the "CD-ROM obtained from Meade County's 911 for 12-09-2012 at 4:58:09," Dispatcher Stephanie Shearer of Breckinridge County 911 can be heard speaking prior to when Meade County 911 answered the call. Ms. Matthews further questioned the lack of documentation or "some written record - that would reasonably have been generated when an Irvington Police Officer was sent out on 12-09-2012" given that Meade County 911 had provided her with written records and CDs for December 9, 2012, "and had nothing showing an Irvington Police Officer having been sent out since Irvington is in Breckinridge County."
By letter dated February 17, 2014, Mr. Butler responded to Ms. Matthews' request for additional information regarding both seeming discrepancies: 2
I have been advised by Amanda Barrett, Assistant TAC, Breckinridge County 911 Dispatch, when a call is transferred to another county's 911 dispatch, the receiving dispatch office's recording system will begin recording as soon as the transfer is sent by the transferring dispatch office and prior to the receiving dispatcher answering the call. Therefore, everything that is said on the phone from the time the call is transferred to the receiving dispatch office until the call is ended is recorded by the receiving dispatch office's recording system, including any conversations or speech prior to the receiving dispatch officer answering the phone. Accordingly, any statements by Dispatcher Shearer made after she transferred the call to Meade County 911 Dispatch would have been recorded by the Meade County 911 Dispatch's recording system even prior to the Meade County dispatcher answering the call.
Ms. Matthews also requested the CAD log or CFS Summary of Dispatcher Stephanie Shearer having sent out an Irvington Police Officer (Unit 13) sometime prior to 4:58 p.m. on December 9, 2012. As stated in prior responses to this request, there simply is no such record.
Attached hereto as Exhibit "A" is the activity or CAD log for Unit 13 of the Irvington Police Department which begins when the officer came on duty at 4:08:34 p.m. (16:08:34) on December 9, 2012 and ends when the officer went off duty at 4:18:35 a.m. (04:18:35) on December 10, 2012. As you can see, there are no entries in the log for Unit 13 responding to the alleged incident involving Ms. Matthews. While it may have been reasonable to create a log entry at the time, no log entry was made by Dispatcher Shearer, and as such, there is no document to be produced.
Moreover, Dispatcher Shearer has advised that she did not believe it was necessary to create a log entry because the call was being handled by Meade County Dispatch, and she believed that Meade County 911 Dispatch would have entered all of the documentation needed for the call in their CAD system.
The current dispute "is factual, and not legal, in nature." 06-ORD-266, p. 6; 01-ORD-124 (inability of a public agency to produce specified time cards did not constitute a violation of the Open Records Act because the agency's time machines were inoperable during the relevant period of time) ; 06-ORD-090 (record on appeal confirmed that no responsive audio cassettes existed as they were destroyed when lightning struck the recording device and the agency could not provide nonexistent records). As the Attorney General has consistently recognized, 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. 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 certain records do not exist, following a reasonable search, as the Sheriff's Office has asserted here on several different occasions. The Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 12-ORD-065.
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, 3 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 only 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 00-ORD-120. Having denied that any recording or documentation exists, and ultimately provided a plausible explanation of why as to both in addition to substantiating documentation, the Sheriff now finds himself in the position of having to "prove a negative" in order to conclusively refute a claim that responsive public records exist in his possession or custody.
The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that a public agency might be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . ." if required to "prove a negative" in order to refute a claim that certain records exist, "presumably 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 340-341. Addressing this dilemma, the 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." 4 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 public records in the absence of a prima facie showing that such records did, in fact, exist in the possession of the agency. See, e.g., 07-ORD-188; 08-ORD-189; 11-ORD-209; 12-ORD-012.
To the extent Ms. Matthews is questioning the content, integrity, or value of the CAD log provided, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 05-ORD-236, p. 3. However, 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. 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 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.
Notwithstanding any tangential questions or underlying concerns that Ms. Matthews raised, no such legal authority has been cited nor does the record on appeal contain any irrefutable proof that either the recording in dispute or any responsive CAD report was created or exists in the possession of the Sheriff's Office (or Breckinridge County 911). The absence of such records "is, simply stated, not actionable in an Open Records Appeal." Id., p. 5. See 12-ORD-065 (appellant reasonably assumed that a "resignation letter" existed in light of statement by public official in a public forum but failed to make a prima facie showing that such a record existed, relying instead on what could "generally be described as conjecture or assumption which, however logical, does not constitute proof"). "Perhaps [additional responsive] documentation should exist, but the Act addresses access to records that do exist." 12-ORD-130, p. 5 (original emphasis). This office does not have "a sufficient basis on which to dispute [the Sheriff'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); 11-ORD-081; 12-ORD-110. Compare 11-ORD-074 ("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"). Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6. In the absence of the requisite prima facie showing, this office must affirm the disposition of Ms. Matthews' request in accordance with Bowling , above, and prior decisions of this office.
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.
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Distributed to:
Elaine MatthewsTodd PateBradley S. Butler
Footnotes
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