Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
By letter directed to Open Records Administrator Carrie Hall on June 7, 2014, Donald Violett submitted the request in dispute, asking for nineteen (19) categories of investigative records, including DNA test results/analysis, pertaining to Case Nos. 92-CR-532 and 92-CR-626. On June 3, 2014, Ms. Hall advised Mr. Violett that the Records Management Section of the DCBS was "unable to identify any records in response to the" request pertaining to his case. "It is understood that this does not mean that the records do not exist under another spelling, another name or another classification," she continued, "but that with the information furnished to our office and to the best of our knowledge, no such records exist in our files." Ms. Hall supplemented her initial response on June 11, 2014, advising that any responsive documents "were eligible for destruction in 2012."
In responding to Mr. Violett's appeal, which focused primarily on his attempts to obtain "test results and analysis" pertaining to his case, Deputy General Counsel Mona S. Womack confirmed that CHFS "has no documents responsive to the request." According to the May 28, 2014, e-mail 1 attached to her July 8, 2014, letter, CHFS "could see that an investigation was identified in the mainframe of its computer records but could not locate the records in archives and further determined that any such records were eligible for destruction in 2012 pursuant to the agency's records retention schedule," which mandates that child protection records be maintained for twenty (20) years. Because CHFS "could not locate any records responsive to Mr. Violett's request," Ms. Womack concluded, "letters were issued accordingly on June 3 and June 11, 2014." Ms. Womack further advised that CHFS "would not be the agency in possession of test results and analysis" used in the case(s) against Mr. Violett. Such test results "would be part of the criminal case handled by the Commonwealth['s] Attorney as opposed to [CHFS]." The agency's initial failure to advise Mr. Violett of this fact, and its omission of the contact information for the custodial agency on both occasions, violated KRS 61.872(4), pursuant to which, "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." With this exception, the agency's ultimate disposition of Mr. Violett's request is affirmed.
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 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; 07-ORD-190. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the requested records exist, 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 and explaining why, following a reasonable search, as CHFS ultimately did here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056. Under the circumstances presented, 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; 13-ORD-073. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Nevertheless, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) in dispute in 1994 when the General Assembly enacted KRS 61.8715, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." 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 at a minimum. 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" ); 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 as a complainant or a victim during the specified time frame); 12-ORD-195. For example, the agency "must identify steps taken to locate missing records or explain under what authority the records were destroyed. " 08-ORD-015, p. 4. Loss or destruction of a public record (s) creates a rebuttable presumption of records mismanagement. 11-ORD-104, p. 5.
Here, CHFS ultimately explained that any responsive documents would have been properly destroyed in the normal course of business per the Department for Community Based Services Records Retention Schedule, independent review of which confirms that Records Series 06147, Individual Case Records -- Active, must be retained in the agency until inactive, and then be transferred to Series 06150, Field Workers' Investigative Files -- Inactive, when action is completed. The Retention and Disposition instructions for Series 06150 provide: "Retain in Agency three (3) years from date of resolution of Agency action plan. Then transfer to State Records Center for seventeen (17) years, then destroy. Total retention twenty (20) years from date of resolution of Agency Action Plan." Notwithstanding any deficiencies in the agency's initial response(s), CHFS ultimately rebutted the presumption of records mismanagement and satisfied its burden of explaining the nonexistence of the investigative records per KRS 61.880(2)(c); accordingly, this office affirms the denial of Mr. Violett's request.
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:
Donald ViolettCarrie HallMona S. Womack
Footnotes
Footnotes
1 The referenced e-mail was directed to Ms. Hall by Larry Weese, DCBS Records Officer, on May 28, 2014, in response to Ms. Hall's May 27, 2014, request for the records to be ordered from archives. Mr. Weese indicated that he was not able to locate any file under the name or case number provided. He further noted that any such file was eligible for destruction as of 2012. Based upon the "Child Information" entry contained in Ms. Hall's e-mail, this office assumes that any relevant action was taken during June 1992, hence the agency's position that any such records would have been destroyed 20 years later in 2012.