Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Police ("KSP") violated the Open Records Act in its disposition of inmate Desmond Dixon's open records request for records pertaining to his criminal conviction. For the reasons that follow, we find that KSP fulfilled its obligations under the Act.
In a request to KSP, dated May 2, 2017, Mr. Dixon asked to receive:
Any documents that show or verify that the DNA results pertaining to case # 80-12-081469 were sent to the Jefferson County Public Defender's [office], and the Jefferson County Commonwealth's Attorney. i.e. Are there mail log's or chain-of-custody forms that would show who all received a copy of the results and when? If so, that is what I need a copy of. [ sic ]
Having received no response to his request, Mr. Dixon instituted this appeal and clarified that he wished to receive a copy of the mail log and chain of custody forms that would show who received a copy of the DNA results and when they received their copy.
Cody Weber, staff attorney, KSP, responded to the appeal and provided an affidavit from Emily Perkins, KSP's official custodian of records. Ms. Perkins's affidavit stated that KSP had not received Mr. Dixon's open records request prior to receiving it as an attachment to his appeal. In the absence of incontrovertible proof (such as a return receipt following delivery of a certified letter) that KSP actually received Mr. Dixon's request, 1 we assign no error to KSP's lack of response to that request. 02-ORD-1 (the Attorney General "is not equipped to resolve a factual dispute concerning the actual delivery" of an open records request); 05-ORD-252 (if request did not reach the agency, the agency "cannot be faulted for its failure to respond"); accord, 15-ORD-014, page 3, note 2.
Mr. Weber further stated that KSP does not possess any mail logs or chain-of-custody forms that would indicate who received a copy of the DNA test results in Mr. Dixon's criminal case because such reports are made available to law enforcement agencies and prosecutors via a web portal for downloading. KSP does not track when a law enforcement agency or prosecutor views or prints the reports from the web portal. Mr. Weber cited a long line of decisions of the Office of the Attorney General for the proposition that a request for a nonexistent record need not be honored as a public agency cannot furnish access to a record that it does not have. We concur.
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. Rather, the right to inspect attaches only 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. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3; 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225. In his supplemental response of June 27, 2017, Mr. Weber affirmatively stated that a "mail log, " as requested by Mr. Dixon, does not exist and there is no way of knowing if a specific agency accessed or downloaded the laboratory reports.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c) 2, public agencies must, at a minimum, offer some explanation for the nonexistence of the record(s). See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). When, as in this case, a public agency denies that certain records exist, and the record on appeal does not refute that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9 (other citations omitted). In this instance, KSP has satisfactorily explained that no mail logs exist because access to the laboratory results are provided via web access. Because KSP cannot produce nonexistent records for inspection or copying, nor is KSP required to "prove a negative" in order to refute Mr. Dixon's implicit claim that the requested mail logs exists, there is no basis upon which to find that a violation of the Act was committed in KSP's denial.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to 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.
Footnotes
Footnotes
1 The Open Records Act does not require a requester to submit his request by certified mail, return receipt requested. Standard mail delivery is sufficient under the Act. KRS 61.872(2). A return receipt for certified mail would, however, provide proof of actual delivery of the request. 08-ORD-007, p. 2, note 1.
2 KRS 61.880(2)(c) states, in relevant part: "The burden of proof in sustaining the action shall rest with the agency." The "action" being the agency's response to the open records request.