Opinion
Opinion By: Jack ConwayAttorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal by letter dated January 15, 2015, alleging that Spencer County Sheriff Buddy Stump failed to issue a written response upon receipt of the written request Mr. Trageser hand-delivered on September 8, 2014. Mr. Trageser asked for "any and all records of a theft or stolen property report or reports from the time period of January 1, 2011 through the current date, pertaining to the property identified as 344 Wilsonville Road within the boundaries of Spencer County." Upon receiving notification of Mr. Trageser's appeal from this office, Major Carl Reesor responded on behalf of the Spencer County Sheriff's Office. Major Reesor acknowledged that the Sheriff's Office received Mr. Trageser's request on September 8, 2014, at which point Lieutenant Jonathan Bentley "reviewed the case reports for the time period requested and contacted the dispatch center (KSP Post 12) and requested a computer aid dispatch (CAD) report for all calls of service to the Spencer County Sheriff's Office for 344 Wilsonville Road." Following a careful review of the CAD, Major Reesor advised, "it was determined that no report(s) exists for any theft or stolen property at that address."
Major Reesor further explained that, as required by the Spencer County Judge-Executive's Order, 1 Lieutenant Bentley delivered Mr. Trageser's request to the Spencer County Attorney's Office along with the CAD confirming that no responsive documents existed. Attached to Major Reesor's appeal response was a copy of the January 14, 2015 affidavit of Treasure A. Bryant, former employee of the County Attorney's Office. Ms. Bryant attested that Lieutenant Bentley had brought Mr. Trageser's request to the County Attorney's Office in September 2014 and that Lieutenant Bentley had advised that the Sheriff's Office did not have any such records; he also gave her a copy of the CAD from KSP which confirmed that no such reports were made from the address provided. Ms. Bryant confirmed that she mailed a copy of the CAD with a letter to Mr. Trageser's home address.
Major Reesor advised that Ms. Bryant had saved a copy of her written response on the "state issued PAC [Prosecutors Advisory Council] computer. Ms. Bryant also stated that the PAC computer had stopped working and was returned to PAC Office in Frankfort for repairs." Major Reesor met with current Spencer County Attorney Kenneth S. Jones on January 14, 2015, and requested that he contact PAC regarding the status of the computer. As of January 15, the date of his response, Major Reesor was unable to obtain a copy of the response that Ms. Bryant saved on the PAC computer but agreed to forward a copy to this office if or when that becomes feasible. 2
Notwithstanding any dispute regarding the alleged violation of KRS 61.880(1) by the Sheriff's Office, the record on appeal contains no basis upon which to find that a substantive violation was committed. 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), 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 the Sheriff's Office has maintained here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 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. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
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. " Simply put, Kentucky's Open Records Act applies to records that currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994. In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the records being sought and under what authority the records were destroyed, if appropriate. 11-ORD-104, p. 5. Loss or destruction of a public record(s) creates a rebuttable presumption of records mismanagement. Id. When, as in this case, a public agency has denied that any responsive public records exist after making "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested, 4 and the unrefuted evidence presented confirms, rather than refutes that position, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 13-ORD-024.
Because Mr. Trageser "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." 09-ORD-214, pp. 3-4. See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 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" ); 11-ORD-074 (recognizing that the "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").
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes