Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in failing to timely respond to a request, and in not providing records which did not exist. We find that KSP timely responded to the request, and did not violate the Open Records Act in not providing documents which did not exist.
Uriah Pasha ("Pasha") submitted an Open Records Request to KSP dated Mar. 18, 2014. Pasha requested "a copy of the CAD Report and Audio Recording of the Kentucky State Police Investigator's interview with Uriah M. Pasha # 092028 at Little Sandy Correctional Complex . . . Tuesday, March 18, 2014." Pasha initiated this appeal on Mar. 31, 2014 on the grounds that "the Kentucky State Police have not responded in the Open Records Act time limitation of five days because they are concealing the record."
KSP responded to the appeal on Apr. 14, 2014, stating that "on March 31, 2014 . . . a letter was mailed to Appellant advising that the records weren't immediately available and that a final response would be mailed on or before April 2014." KSP argued that "as there was no procedural violation and the records have been provided, this appeal may be dismissed as moot. " KSP attached the Mar. 31, 2014 letter, which indicates that KSP received Pasha's request on Mar. 25, 2014, and states that "due to the storage location of this file, the records are not immediately available. However, I have requested a copy of the records be forwarded to this office. . . . The records should be mailed to you on or before April 14, 2014." KSP also attached a letter to Pasha dated Apr. 14, 2014, which states that a copy of the dispatch log was enclosed, "however please be advised that the interview you gave was not recorded . . . a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have."
KRS 197.025(7) provides:
upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
KSP stated that it received the letter on Mar. 25, 2014, and responded within five business days on Mar. 31, 2014. Accordingly, KSP did not violate the Open Records Act in failing to timely respond to a request.
Regarding the dispatch log, KSP indicated that it has already provided the record to Pasha. Accordingly, that portion of his request is moot. Regarding the investigation recording, KSP has stated that no such record exists. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. A complainant may overcome an agency's denial that records exist, but "must make a prima facie showing that such records do exist."
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). Pasha claims that "all investigations are recorded, " but cites to no authority requiring the recording of this particular investigation. "Because Mr. Pasha '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.'" 11-ORD-122. Accordingly, we find that KSP did not violate the Open Records Act in not providing documents which did not exist.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Uriah Pasha # 092028Emily M. Perkins