Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Douglas Krusley initiated this appeal by letter dated April 27, 2016, challenging the alleged inaction of attorney Brent Cox relative to his April 15, 2016, request for "all discovery" relating to Indictment No. 12-CR-00343. Mr. Krusley included a list of the specific items being sought. 1 Upon receiving notification of Mr. Krusley's appeal from this office, Mr. Cox advised that he is a conflict attorney for the Department of Public Advocacy ("DPA"). 2 Mr. Cox explained that he represented Mr. Krusley "in 2014 following his conviction in Indictment No. 12-CR-00343, Pulaski Circuit Court, Division I." Mr. Cox did not represent Mr. Krusley at trial "but simply handled some post-conviction issues prior to the matter being appealed." Mr. Krusley's case was assigned to Mr. Cox by DPA after issues arose between Mr. Krusley and his trial counsel.
After filing a notice of appeal, Mr. Cox advised, "I was relieved as counsel of record and the appeals division of the DPA was substituted to handle Mr. Krusley's case. At that time, I forwarded my entire file including all discovery in my possession to the director of the DPA Appeals Division, Ms. Kathleen Schmidt." 3 To the best of my knowledge, Mr. Cox explained, "the records being sought by Mr. Krusley are in the possession of the DPA Appeals Division. I have not been in possession of any of Mr. Krusley's file since 2014." 4
The Attorney General has consistently recognized 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. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the possession of the agency. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, at KRS 61.8715, 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).
However, in order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), a public agency must offer a written 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; 12-ORD-195. This Mr. Cox has done. Compare 11-ORD-074 (holding that "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" and the agency failed to rebut the presumption). A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records being sought exist in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist, and explaining why if appropriate. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056. Mr. Cox did not violate the Open Records Act in denying Mr. Krusley's request for a file that he does not possess.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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
1 Mr. Krusley directed his request to Mr. Cox using the following address: "631 East Main Street Lexington, Kentucky, 40508." However, the letterhead on which Mr. Cox's appeal response was faxed provides the following address for "Cox Attorney, PLLC": "107 W. Short Street P.O. Box 1077 Lexington, Kentucky, 40588-1077." This discrepancy is likely the reason that Mr. Cox advised, "I did not receive Mr. Krusley's request until I saw it attached to the Notice of Open Records Appeal." There is no basis upon which to find that a violation of KRS 61.880(1) was committed under these circumstances.
2 As a private attorney, Mr. Cox would not otherwise fall within the definition of "public agency" codified at KRS 61.870(1), and therefore would not be subject to provisions of the Open Records Act. See 06-ORD-011 (Attorney General confirmed that a "sufficient nexus" did not exist between private attorney to whom request was directed and the DPA to render him subject to ORA). Mr. Cox did not raise this argument on appeal. In any event, Mr. Cox does not possess the records in dispute. Accordingly, this office "leaves for another day the question of whether attorneys engaged in a contractual relationship with the DPA are subject to the Act." Id., p. 2; see also 07-ORD-210 (record on appeal was "devoid of proof" that private attorney was "affiliated, in any manner, with a public agency such as [DPA]").
3 Mr. Cox did not provide the "name and location of the official custodian" per KRS 61.872(4).
4 In a separate but related appeal, identified as Log No. 201600191, DPA ultimately confirmed that its Appeal Division had possession of Mr. Krusley's trial file and his appellate file, both of which it provided to Mr. Krusley.