Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hodgenville Police Department ("HPD") violated the Open Records Act in the disposition of Marissa Bastian's undated request for one copy of each of the following:
1. Last two calibration verifications/reports for the radar used by Officer J. Richardson # 142 on May 3, 2018.
2. [L]ast radar recertification/training record for [O]fficer J. Richardson # 142.
3. [T]he in-car video from my traffic stop at 7:35 a.m. on May 3, 2018 including, if possible, the portion prior to him making the U-turn to stop my gray VW Jetta.
By undated letter mailed on May 7, 2018, and directed to Chief Marcus Jackson, Ms. Bastian indicated Chief Jackson contacted her by telephone on Friday, May 11, 2018, and stated that she wanted to verify she fully understood his verbal response. According to Ms. Bastian, Chief Jackson did not intend to provide her with any of the records being sought or a written response explaining why as he believed the records were only available through discovery. 1
By letter dated May 24, 2018, Ms. Bastian appealed HPD's denial, advising that she had not received any verbal or written response to her May 15, 2018, letter; that it had not issued a written response within three days per KRS 61.880(1), nor had HPD cited any of the statutory exceptions found at KRS 61.878(1) in support of its apparent denial. Upon receiving notification of Ms. Bastian's appeal from this office, Hodgenville City Attorney Catherine Ford Claycomb responded on behalf of HPD. Ms. Claycomb stated that Sergeant James Richardson stopped Ms. Bastian at approximately 7:35 a.m. on May 3, 2018, and ultimately issued a citation to her; the parties resolved Ms. Bastian's case in the LaRue County District Court via a plea agreement with the LaRue County Attorney on May 30, 2018.
Ms. Claycomb endeavored to correct any "possible deficiencies in Chief Jackson's response" to Ms. Bastian's request. First, she indicated that she was enclosing a copy of "a certificate of calibration on the radar used by Sgt. Richardson on October 12, 2010," and "two work orders on the radar, dated September 17, 2010, and January 28, 2015." Ms. Claycomb stated these are the only existing documents responsive to item 1 of Ms. Bastian's request in the possession of the HPD. Second, HPD "does not have Sgt. Richardson's radar training records and accordingly must deny the request" for those records. Citing 03-ORD-093, Ms. Claycomb asserted that a public agency such as HPD is "not required to create documents that do not exist." Acknowledging that a public agency "must, at a minimum, offer some explanation for the nonexistence of the records," Ms. Claycomb explained that Sgt. Richardson's radar training "was undertaken during his prior career as a military policeman, and any records produced in the course of his training have never been given to" HPD. Third, Ms. Claycomb stated HPD "cannot produce 'in-car video' from the traffic stop because Sgt. Richardson's car was not equipped with in-car video. Sgt. Richardson was, however, wearing a body camera, and the [HPD] will produce the video from that camera upon proper request."
With regard to records the HPD ultimately provided to Ms. Bastian, the related issues are now moot per 40 KAR 1:030 Section 6, which governs "[m]oot complaints." Pursuant to 40 KAR 1:030 Section 6, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In applying this mandate, the Attorney General has consistently held that when a public agency has denied access to public records that are the subject of a request, but subsequently grants the requester access, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5 (citing OAG 91-140). Because HPD has now provided Ms. Bastian with all existing documents responsive to item 1, this office respectfully declines to render a decision regarding that item of the request.
A public agency such as HPD must comply with substantive and procedural requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests made under the Open Records Act. A verbal response does not satisfy the requirements of KRS 61.880(1), pursuant to which a public agency, upon receipt of a request, "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." (Emphasis added.) See 08-ORD-170; 10-ORD-033; 12-ORD-180; 16-ORD-244. A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6; 15-ORD-174. Thus, in construing KRS 61.880(1), the Attorney General has consistently recognized, "[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-153.
Support for this position is found in KRS 61.872(5), which authorizes postponement of access to public records beyond three business days only "[i]f the public record is in active use, in storage or not otherwise available." Under those circumstances, "the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5); 01-ORD-140; 16-ORD-153. "[T]he Act 'normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request.'" 01-ORD-140, p. 4 (citing OAG-92-117). "Only if the parameters of a request are broad," this office reasoned, "and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a 'reasonable time for inspection turn on the particular facts presented.' . . ." Id. (citation omitted). 01-ORD-140, p. 4; 07-ORD-179; 09-ORD-007; 13-ORD-098; 14-ORD-026.
By failing to issue a written response of any kind to Ms. Bastian's request (clearly labeled, "Open Records Request"), 2 within three business days and by failing to either provide any existing responsive documents that were not exempt under KRS 61.878(1) and explain the nonexistence of the remaining documents, or properly invoke KRS 61.872(5) if appropriate, HPD violated the Act. See 16-ORD-044. In the absence of a legitimate detailed explanation of the cause for the delay in providing access, the Attorney General must conclude that HPD did not provide Ms. Bastian with "timely access" to records provided only after she initiated the instant appeal. This delay subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), as the records were apparently not "in active use, in storage or not otherwise available." See 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-004; 13-ORD-053; 14-ORD-040.
However, HPD cannot produce nonexistent records for inspection or copying; nor is a public agency such as HPD required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban Cnty. Gov't, 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"); 07-ORD-188; 14-ORD-145. 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 order to satisfy its burden of justifying a denial per KRS 61.880(2)(c), however, a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. 11-ORD-104, p. 5. See 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 order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling, 172 S.W.3d 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. 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. Compare 12-ORD-195. Nevertheless, HPD has credibly explained the reason why the requested training records for Sgt. Richardson and the requested in-camera video do not exist in the possession of the agency. When, as in this case, a public agency denies that additional records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 3 05-ORD-065, pp. 8-9. No prima facie showing has been made in this case nor has any evidence been presented to suggest that additional responsive documents were created or maintained. Accordingly, this office affirms the agency's ultimate disposition of Ms. Bastian's request. See 12-ORD-183.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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