Request By:
William Van Cleve
Emily Perkins
Cody Weber, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in its disposition of a request for a copy of an audit of the City of Ravenna. For the reasons set forth below, we find no substantive violation of the Act, but KSP's failure to respond within three days was a procedural violation of the Act.
William Van Cleve submitted an open records request, dated July 22, 2017, to KSP. He explained that he is a member of the Ravenna City Council and was concerned about the method that City employees use to keep and report their work time. He understood that the time-keeping method had come from an audit of the Ravenna Police Department by KSP "sometime during 2013-2014." He requested a copy of the audit and any correspondence between KSP and the City of Ravenna.
By letter dated August 4, 2017, Mr. Van Cleve appealed to our office, stating that he had not received a reply from KSP. Cody Weber, Staff Attorney, KSP, responded to the appeal on behalf of KSP, by letter dated August 14, 2014. Mr. Weber explained that KSP had responded to the request, and provided a copy of a letter from Emily Perkins, Official Records Custodian, KSP, to Mr. Van Cleve dated August 7, 2017. Ms. Perkins's letter explained that "a search of Kentucky State Police records was conducted and no records were found." KSP's response admitted that the letter of August 7, 2017, was outside the statutory period allowed by the Act for an agency to respond. He further explained that the Custodian of Records had spoken with the requester via telephone prior to that deadline and advised him that no records had been located but that a search of the Special Investigations Branch records was still being conducted. The written response to the requester was sent immediately upon conclusion of the records search.
KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days ? after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
While we commend KSP for verbally advising the requester of its progress in searching for the requested records, KRS 61.880(1) requires an agency to respond in writing to an open records request within three business days. In failing to respond to the request in writing within three days, KSP committed a procedural violation of the Open Records Act.
Although the requester has provided his understanding that KSP conducted an audit, the requester has no firsthand knowledge that such an audit was actually performed, and has provided no legal authority from which the existence of the audit can presumed. See 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 "can be presumed. " 11-ORD-74, pp. 3-4); 14-ORD-107; 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" ).
In regard to KSP's ultimate disposition of the request, we find no violation of the Act. As the Attorney General has consistently recognized, 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 (emphasis added); 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. By conducting a search reasonably calculated to produce the record, should it exist, and providing a written denial of the record's existence, KSP fulfilled its requirement under the Open Records Act.
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.