Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Eric T. Lyvers initiated this Open Records Appeal by letter dated June 7, 2017, challenging the denial by the Kentucky State Police ("KSP") of his May 23, 2017, request for the following: 1
Any and all documents, communications, notifications, and [confirmations] to and from any officer, agent, agency, and/or persons pertaining to and/or dealing with said Lab Report [#14-W-05542, Case No. 03-14-0595]. Whether it be written and/or electronically sent and/or filed, all that is dealing with said Lab Report between Dec. 23, 2014 [and] Feb. 28, 2015 ([ i.e. ,] Emails, Faxes, Calls, Texts, Postings on KSP Website/page, [ etc .])
By letter dated May 31, 2017, KSP Official Custodian of Records Emily M. Perkins responded on behalf of KSP. Ms. Perkins advised that "a search of KSP records was conducted and no records were found." Citing a line of decisions by the Attorney General, KSP correctly observed that a public agency cannot honor a request for nonexistent records or provide that which it does not have.
Upon receiving notification of Mr. Lyvers' Appeal from this office, Staff Attorney Cody Weber reiterated the agency's original position. Specifically, Mr. Weber observed, "KSP Central Laboratory Branch Forensic Laboratory Manager Laura Sudkamp was asked whether any records relating to the request existed and she confirmed that no records existed." Attached to Mr. Weber's June 20, 2017, response was the June 19, 2017, affidavit of Ms. Sudkamp attesting that "[a]fter conducting a search, no records were found that corresponded to Mr. Lyvers' request." 2 The right to inspect records, and the corollary right to receive copies, 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. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. 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-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) ; 07-ORD-188; 16-ORD-134; 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");
Cabinet for Health and Family Services v. Todd County Standard, 488 S.W.3d 1 (Ky. App. 2016) (affirming opinion and order enforcing 11-ORD-074); 12-ORD-195. 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 the Attorney General "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; 12-ORD-231.
A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search (and explaining why, if appropriate). 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. Mr. Lyvers "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses such records as [he] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. In the absence of the requisite prima facie showing, or any facts or evidence to support Mr. Lyvers' claim, this office must affirm the agency's denial of his request per Bowling , and prior decisions of this office including those referenced above. See 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist").
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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In 16-ORD-068 (In re: Eric Lyvers/Kentucky State Police), Mr. Lyvers had requested "[a]ny and all paperwork dealing with chain of command and chain of custody and due process" for the same Lab Report. KSP provided Mr. Lyvers with a chain of custody document responsive to his request; any related issues were thus rendered moot per 40 KAR 1:030, Section 6. Such a document was also responsive to his current request and the agency's response was incorrect to this extent; however, a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 05-ORD-198.
2 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted). Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087. This KSP did not do. However, pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 3, this office contacted Ms. Perkins to clarify how KSP would generally determine whether documents responsive to Mr. Lyvers' request exist within the custody of the agency; Ms. Perkins explained that KSP maintains an electronic log documenting all related communications and Ms. Sudkamp's search encompassed said log but located no responsive documents.
"In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). "Absent proof that [KSP] failed to use methods which could reasonably be expected to produce the records requested," this office has no basis upon which to question the agency's good faith notwithstanding its failure to identify the specific efforts undertaken to locate such documents. 12-ORD-153, p. 4. The Attorney General trusts "that [KSP] directed its search not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." Id.; compare 15-ORD-210.