Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Frederick Robb initiated this appeal by letter dated June 20, 2016, challenging the disposition by the Pike County Sheriff's Department ("Department") of his May 10, 2016, request for a copy of his file relating to Case No. 04-CR-00161, including "all Criminal Complaints, Arrest Warrants, any statements in the file, any laboratory results in the file, the Coroner's report, any Medical Reports in the file, any correspondence to or from all Pike County Detectives in the file, any correspondent [sic] with the Kentucky State Police . . . , any investigative notes in the file." Mr. Robb advised that he was "arrested and went to trial for Murder in November 2004." By letter dated June 8, 2016, Processing Clerk Sara Bailey confirmed receipt of Mr. Robb's request 1 but advised that the Department does not maintain records according to circuit court case numbers. Accordingly, Ms. Bailey advised Mr. Robb to "contact your attorney or circuit court clerk to obtain the agency investigative number in order for your request to be completed." 2
Upon receiving notification of Mr. Robb's appeal from this office, Chief Deputy Lynn Cross responded on behalf of the Department by providing this office with a copy of his July 7, 2016, letter to Mr. Robb. Chief Deputy Cross advised that a search of CourtNet enabled the Department to determine that "04-CR-00161 was investigated by the Kentucky State Police, Post 9, more specifically Det. Joey Howard. Therefore, we have no records involving case number 04-CR-00161." The only information relating to the Department found during its CourtNet search was a "notation that indicated a deputy transported you to Pikeville Medical Center to visit your mother and then transported you back to the Pike County Detention Center." Chief Deputy Cross further advised Mr. Robb to contact Circuit Court Clerk Anna Pinson or the Administrative Office of the Courts if he wished to receive a copy of any records in CourtNet as the Department "does not have permission to disseminate these documents." 3 Based upon the following, this office affirms the Department's denial of Mr. Robb's request.
A public agency such as the Department cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that a certain record(s) exists in the absence of a prima facie showing by the requester that certain records exist in the possession of the agency. See
Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 11-ORD-209; 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"); 12-ORD-195. The record on appeal is devoid of any showing and the right to inspect records only attaches 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; 07-ORD-190. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exist and explaining why if appropriate. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. 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.
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 here nor is any implicated on these facts. Rather, Chief Deputy Cross ultimately confirmed that no responsive documents exist in the possession of the Department and notified Mr. Robb that KSP, Post 9 was the agency that investigated his case; this presumably means that KSP maintains the case file and certainly validates the basis for the denial by the Department. 4 Because the Department ultimately made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no records were located, in writing, and explaining why. 05-ORD-109, p. 3; 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 nor was any evidence presented from which their existence could be presumed under 11-ORD-074); 11-ORD-118.
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 The Department did not specify the date on which Mr. Robb's May 10 request was received. If the Department failed to issue a written response within three business days of receipt per KRS 61.880(1), this inaction violated the Open Records Act. On appeal the Department offered no explanation for the apparent delay. Even assuming that KRS 197.025(7) applies here, the Department's June 8 response was issued well beyond the five business days allowed under that provision. See 03-ORD-140.
2 On appeal Mr. Robb argued that providing his name and the year in which the case was prosecuted was adequate for the Department to search for his file. Mr. Robb maintained that the Department "has my case file and is trying to be elusive." By virtue of his confinement in the Kentucky State Reformatory, Mr. Robb is prevented from exercising his right to conduct on-site inspection of the requested file during the regular hours of the Department per KRS 61.872(3)(a). Accordingly, Mr. Robb was required to "precisely describe" the records "which he wishes to access by mail." His inability to satisfy this requirement "relieve[d] the [Department] of the duty to conduct a search for responsive records which may or may not exist," but which are clearly not "readily available within the public agency." 03-ORD-067, p. 6; 04-ORD-195 (police department did not maintain records according to circuit court indictment numbers). The Department "merely requested more precise information" that would have enabled it to "identify and locate the records requested assuming records fitting the description provided" actually existed in the possession of the agency. 04-ORD-195, p. 5.
3 In 15-ORD-170, this office recognized that records derived from CourtNet "contain an admonition stating that the Kentucky Court of Justice is solely responsible for them and that they cannot be publicly disseminated. Under KRS 26A.200, the Open Records Act is inapplicable to these records, and they cannot be disclosed. Accord, Ex parte Farley, 570 S.W.2d 617 (Ky. 1980)." 15-ORD-170, p. 5, n. 6.
4 Pursuant to KRS 61.872(4), "[i]f 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." The Department referred Mr. Robb to KSP, Post 9 for the requested file and further notified him that he should contact either the circuit court clerk or AOC if he wished to access potentially relevant CourtNet records; the contact information was not provided. To this limited extent, the Department's response was deficient. See 09-ORD-029; 15-ORD-103.