Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
C. Lynnette Thomas initiated this appeal challenging the denial by the Kentucky State Police (KSP) of her July 8, 2014, request for nine categories of "records on an investigation in Crab Orchard, KY that commenced in January 2002." Ms. Thomas advised that she was "told in late 2004 that no further action would be taken on the case." Lieutenant Greg Baird contacted Ms. Thomas by telephone on January 8, 10, and 15, 2002, and Ms. Thomas accompanied her son, Felip M. Ramos, to meetings with Detective Monte Owens and two other detectives on March 27 and 28, 2002. She received a telephone call shortly thereafter from an officer "confirming evidence (remains) [was] discovered at the location" to which her son led the detectives and "that further investigation of the property" was underway. In a letter dated July 16, 2014, Official Custodian of Records Emily M. Perkins advised Ms. Thomas that a search of KSP records was conducted and no records were found based upon the information provided, "as the KSP is unable to locate investigations based upon the complaining witness' name." Ms. Perkins further advised Ms. Thomas that "[s]hould you obtain additional information, such as the names of any suspects or victims, and the type of investigation that was conducted (such as murder, burglary, theft, assault, etc.) the KSP will conduct another search for these records." KSP cited a line of decisions by this office recognizing that a public agency cannot honor a request for nonexistent records or produce that which it does not have.
By letter dated July 18, 2014, Ms. Thomas further advised that she was told "by Det. M. Owens and Lt. M. Merriman that it was a homicide investigation of two or more child victims," one of which KSP had not identified as of her last contact with either of those individuals. Ms. Thomas provided the names of the four possible suspects that her son could identify as well as the name of the property owner(s) and the individuals listed as tenants. By letter dated July 29, 2014, Ms. Perkins advised that a search of KSP records for investigations of "crimes committed in April to May 1997 in Crab Orchard, Lincoln County, involving" any of the four individuals named as possible suspects had not yielded any responsive documents. KSP noted that the "only investigation from that timeframe and location involved suspects Harold Upton and Ryan Shangraw, who were charged with Murder and Attempted Murder. If you believe this to be the investigation you are seeking to obtain, please let me know." Ms. Perkins reiterated that a public agency cannot provide a requester with nonexistent records.
By letter dated August 4, 2014, Ms. Thomas advised that she was not concerned with any such investigation and clarified that "although the crimes were said to have occurred (by the witness) many years prior (in April/May of 1997), " the subject investigation did not commence until January or March of 2002. Prior to 2002, Ms. Thomas noted, there was no investigation to her knowledge. Ms. Thomas advised that she could send photographs of the detectives who met with Felip on March 27, 2002. By letter dated August 13, 2014, Ms. Perkins confirmed receipt of Ms. Thomas' August 4, 2014, letter providing additional information to assist in locating the investigation during which Felip was interviewed in Lincoln County. Ms. Perkins advised Ms. Thomas that another search was conducted of KSP records but no such records were found. By letter dated September 3, 2014, Ms. Thomas clarified that she asked for documents generated in the investigation that was conducted in Garrard County rather than Lincoln County. Ms. Thomas enclosed a copy of a picture of Felip with two of the detectives "at the location where the investigation was initiated, taken on March 27, 2002." She questioned how a boy can be interviewed, "the detectives confirm that evidence was found, the detectives and I have multiple correspondences over the next two years "and there be no record."
Upon receipt of Ms. Thomas' September 3, 2015, letter and enclosed photograph, Ms. Perkins forwarded the photograph to KSP Post 7, which is the post that covers both Garrard and Lincoln counties. Ms. Perkins advised that KSP had identified the detective in the photograph but he is no longer employed at KSP. Nevertheless, KSP contacted him regarding Ms. Thomas' request and the related photograph. Ms. Perkins advised Ms. Thomas that as of September 22, 2014, KSP had not received a response from the detective or located any responsive documents. KSP was "continuing to research this issue" and Ms. Perkins advised that she would send a letter updating Ms. Thomas on the status of her request "as soon as any additional information is received." Having received no further correspondence, Ms. Thomas again contacted Ms. Perkins by letters dated February 11, 2015, and June 10, 2015 regarding the status of her request. Ms. Thomas initiated this appeal by letter dated September 30, 2015, noting that KSP did not provide any further updates after indicating that it would continue researching the matter.
Upon receiving notification of Ms. Thomas appeal from this office, Ms. Perkins responded on behalf of KSP. Ms. Perkins advised that KSP "has responded to multiple correspondences, well within the provisions of KRS 61.872(5), and has advised [Mr. Thomas] multiple times that there are no records in existence." 1 KSP did not respond to subsequent correspondence, "as [Ms. Thomas] had already been advised that no records existed, and there was no new information to provide to [her]." KSP explained that Ms. Thomas is "parent to a child that was apparently interviewed by KSP detectives well over ten (10) years ago. However, no investigation or documents were generated, as there was no evidence of a crime being committed. [Ms. Thomas] was advised both in writing and telephonically that no records pertaining to the incident were located." Accordingly, Ms. Perkins reiterated that KSP cannot produce records that do not exist, again citing a line of decisions by this office in support of the agency's position.
KSP was correct in asserting that 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. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," but discharges its duty under the Open Records Act in affirmatively indicating that records being sought do not exist following a reasonable search, and explaining why, as KSP ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3; 14-ORD-204. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore no record was created); 99-ORD-98; 03-ORD-205; 09-ORD-145. 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, and the Attorney General has applied a higher standard of review to denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, 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).
In responding to Ms. Thomas' July 8, 2014, request as well as her subsequent correspondence dated August 4, 2014, and September 3, 2014, KSP advised that a search was conducted for any records matching the original description provided and following receipt of the additional information provided, respectively; KSP ultimately advised that no investigation was deemed necessary and thus no records were created. 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, 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; 10-ORD-187 (requester's assumption that agency would create and maintain the report in dispute was entirely reasonable on the facts presented but Open Records Act does not "impose a duty on a public agency to create specific records" and the agency could not produce a nonexistent record nor was further inquiry warranted absent objective proof contrary to its position).
KSP 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. However, 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 has recognized 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 at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited or independently located here. See 09-ORD-129 (KSP did not violate Open Records Act in denying request for nonexistent complaint and investigative file as no such records were created or existed in the possession of KSP and no evidence to contrary was presented on appeal "beyond mere assertions"); 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 existence of same could be presumed); 12-ORD-037 (absent proof beyond a bare claim that records being sought existed, or that search by the agency for those records was inadequate, Attorney General declined to find that agency violated the Act); 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.
Although Ms. Thomas' son was apparently interviewed by a detective in 2002, and she provided a picture of her son with at least one detective on the property where the alleged incident occurred, the fact remains that "we do not have a sufficient basis on which to dispute the [agency's] representation that no such records" were created or maintained in this instance notwithstanding Ms. Thomas' understandable assumption that investigative records were created. 09-ORD-214, pp. 3-4; 12-ORD-065 (requester's assumption that letter existed was reasonable in light of public official's reference to letter in a public forum, but requester's assumption, however logical, did not constitute proof to refute agency's position that no such letter was ever created); 14-ORD-004. Because KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested" 2 it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no records matching the descriptions provided were located and ultimately explaining that no investigation was ever conducted as there was no evidence of a crime being committed. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. The denial by KSP is affirmed.
A party aggrieved by this decision may appeal it 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.
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