Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal by letter dated January 17, 2017, challenging the disposition by the Louisville Metro Government ("LMG") of his related but separate requests dated January 2, 2017, and January 10, 2017. By letter dated January 2, 2017, Mr. Trageser asked for the "personnel file of City of Louisville Police [O]fficer Thomas Hartman," including but not limited to, "any internal affairs investigations, reprimands, complaints, termination letters and resignation letters." Officer Hartman would have worked in "the then 5th District in 1990 and 1991," Mr. Trageser noted, and he was "involved in an incident" which resulted in the arrest of a "civilian named [Pasquale] White on December 7, 1990," following which Chief Doug Hamilton "ordered 5th District Captain David Lyons to complete an investigation report about [O]fficer Hartman's actions." Mr. Trageser sought "ALL reports and investigation files" regarding the aforementioned incident. (Original emphasis.) LMG provided certain responsive documents on January 9, 2017, with limited redactions per KRS 61.878(1)(a)(not challenged here), but advised that "[LMG Human Resources] has no record of the incident referred to in which Thomas Hartman was involved in the arrest. "
Following a discussion with Open Records Specialist Stephen Fry, Mr. Trageser submitted a request directly to Sergeant Corey Cadwell, Louisville Metro Police Department ("LMPD"), on January 10, 2017, seeking Office Hartman's personnel file, and, in particular, "a specific investigation or preliminary review ordered by then Louisville Chief of Police Doug Hamilton, involving the arrest of Pasquale White by [O]fficer Thomas Hartman." Mr. Trageser indicated that he was including a May 8, 1991 Courier-Journal article containing specific details regarding the incident. 1 Sergeant Cadwell promptly advised Mr. Trageser that LMPD forwards all personnel file requests "for retired/separated officers to Metro Government to fulfill the request as they take over custody of the records." Accordingly, the responsive personnel file had already been provided. LMPD asked Louisville Metro Archives to conduct a search for the requested investigative records but was advised that no such records were located following that search. This appeal followed.
On appeal Mr. Trageser referenced Courier-Journal articles that "clearly state an intention, order or confirmed directive" by then Chief Hamilton "to conduct a preliminary review of the arrest, " in addition to Records Series L6887 on the Local Governments General Records Retention Schedule , requiring that local agencies maintain Employee Disciplinary Files for a period of sixty (60) years. In response to Mr. Trageser's appeal, Paul V. Guagliardo, Assistant Jefferson County Attorney, reiterated that "LMG has no evidence to suggest that the record he seeks ever existed; let alone that LMG ever improperly destroyed same." Mr. Guagliardo advised that Mr. Trageser was not relying upon the correct retention schedule in asserting that LMG was required to maintain any such records for a period of 60 years. LMG advised that Records Series L5123 on the Louisville/Jefferson County Metro Records Retention Schedule governs "Formal Complaints/Internal Investigations" and provides that such records can be destroyed five (5) years after termination of employment. Officer Hartman's employment "terminated in 1999," Mr. Guagliardo advised, "over three years before the local governments were consolidated on January 3, 2003." LMG noted that "Mr. Trageser's reference to the 1991 Courier-Journal article . . . describes a 'preliminary review' of Officer Hartman's involvement with Mr. Pasquale White. There is no basis to suggest, let alone conclude, that anything more than that 'preliminary review' ever occurred." Even if that review was conducted, and it was reduced to writing, LMG maintained, "the retention schedule for such a record would be relatively short." In any event, Mr. Guagliardo continued, LMG provided Officer Hartman's personnel file but advised that "neither LMPD nor [LMG] Human Resources nor Louisville Metro Archives has any record of the incident he is concerned about."
This office 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; 15-ORD-164. 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 LMG 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; 15-ORD-206. 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 Mr. Trageser's request(s) and his appeal, LMG advised that a search of LMPD, LMG Human Resources, and LMG Archives was conducted for any records matching the description provided and none were located; LMG ultimately advised that even assuming responsive documents were created, the applicable Retention Schedule authorized their destruction years prior to Mr. Trageser's request. See 12-ORD-050; 13-ORD-149. A representative from the Kentucky Department for Libraries and Archives has confirmed that Records Series L5123 on the Louisville/Jefferson County Metro Records Retention Schedule , authorizing destruction of such records 5 years after the individual's employment has ended, is the appropriate Records Series. 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). See 14-ORD-049; 15-ORD-206.
LMG 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 though evidence was presented from which a person could reasonably question whether such records may or should have been created. 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 references to a "police review" appear in the article upon which Mr. Trageser relied, as well as the possibility of a "broader investigation," 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 [Mr. Trageser's] understandable assumption that investigative records were created." 2 15-ORD-206, p 5, quoting 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 LMG made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested" 3 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 even if LMPD investigated the incident, and records were, in fact, generated, those records would have been properly destroyed 5 years after Officer Hartman's employment ceased. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. The denial by LMG is affirmed.
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 must 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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