Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
James T. Clemons appeals the response of the Lexington-Fayette Urban County Government Division of Police to his June 2, 2014, request for "a copy of any DNA testing results of James T. Clemons in connection with the murders investigated by Detective M L. Brotherton of Doris Ann Roberts, Sonora Allen, and Viola Green . . . ." The Division of Police responded that "[t]he Bureau of Investigation reviewed the requested case file and determined that no DNA sample was received from Mr. Clemons and therefore there are no such test results in existence." The Division of Police offered a plausible explanation for the nonexistence of DNA test results responsive to Mr. Clemons' request, and the Division cannot produce records that do not exist. We adopt the reasoning found in 11-ORD-014, a copy of which is attached, in concluding that the Division of Police did not violate the Open Records Act in denying Mr. Clemons' request on the basis of the records' nonexistence as long as it made "a good faith effort to conduct a search using methods which could reasonably be expected to produce the records requested." 11-ORD-014, p. 5; see also 11-ORD-037 (enclosed).
Either party may appeal this decision 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.