Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in the disposition of Angela Hoback's ("Appellant's") requests for records. For the reasons stated below, we find that KSP did not violate the Act.
On March 21, 2018, Appellant submitted an open records request to KSP seeking a "recording of 911 [ sic ] call"; and "[a]ny additional records associated with this call." Appellant described the call in the request stating, "I placed this call from either my home telephone number. . .or my cell phone number. . .I placed this call on May 30, 2017 between 8:00 p.m. and 9:00 p.m., Central Time Zone." Appellant provided her home address and phone numbers in the request.
On March 27, 2018, 1 KSP responded to Appellant's request by letter stating that KSP would provide her with information, including three (3) pages and one (1) CD. On April 17, 2018, Appellant submitted an appeal with this office regarding the denial of the CD. Appellant stated "the reply states that a CD is enclosed, yet there was no CD in the envelope." Appellant stated that she had tried unsuccessfully to contact KSP and "left two voice messages for the Official Custodian of Records. . .to return my call so that this issue could be resolved." Appellant also stated that she had concerns regarding the request for payment for the request from KSP.
On May 1, 2018, KSP responded to the appeal by sending a letter to the Appellant. KSP informed Appellant that "[u]pon receiving your appeal from the Attorney General's Office we became aware that we accidentally did not include the CD with our March 27th letter." KSP provided Appellant a copy of the omitted CD and a three (3) page CAD Incident Detail Report. KSP also told Appellant to disregard the previous requests for payment and there would be no charge for the records.
On May 7, 2018, Appellant contacted this office to verify that she had received the records. However, Appellant stated that "the actual 911 call that I placed was not on the CD." To facilitate a correct resolution of this matter, this office requested that KSP provide us with hard copies of the records for the purpose of in camera review, pursuant to KRS 61.880(2)(c) 2 and 40 KAR 1:030, Section 3. 3 On May 30, 2018, KSP supplemented the record with copies of the CD and responsive records. KSP noted that the CD contained "911 audio" but Appellant's 911 calls could not be located. KSP recounted the search for the 911 calls, which included a search conducted by the KSP Post 1 staff and interviews of the radio room supervisors. KSP concluded that no 911 calls were "found possibly due to technical difficulties of recording 911 calls that Post 1 experienced in 2017." The email communications of the Post 1 staff were included with the supplement for verification. KSP stated that it provided Appellant "with all responsive records in its possession via its May 1, 2018 correspondence[.]"
We find that KSP's initial response to Appellant's open records request was deficient. KSP violated KRS 61.880(1) 4 when it failed to advise Appellant that her 911 calls could not be located. The inability of KSP to produce the records because no records were created was "tantamount to a denial and. . .it [was] incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 09-ORD-019. The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p.10. 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. The mandatory language of KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Accordingly, this office has consistently recognized that 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 so indicating. 98-ORD-154, p. 2 (citing 97-ORD-161, pg. 3); 04-ORD-205, p. 4. KSP initially omitted the requested CD from the responsive records, but corrected that error during the appeal. However, KSP should have affirmatively advised Appellant that the 911 calls placed from her telephone numbers could not be located.
Regarding access to the existing records, KSP complied with its duties under the Open Records Act when it provided Appellant with copies of the 911 audio files in its possession. A public agency cannot produce nonexistent records for inspection or copying, nor is a public 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 Cnty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. Appellant states that her 911 calls are not on the CD and asks that the Attorney General assist in resolving the matter. However, this office generally declines to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-91, p.4; 10-ORD-195; 14-ORD-204. "Objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 14-ORD-204; 10-ORD-178, p.2.
Nevertheless, the burden of proof imposed by KRS 61.880(2)(c) requires that KSP offer some explanation for the nonexistence of the records. 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" ); 12-ORD-195. A public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing
Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). In this case, KSP provided a sufficient explanation for the nonexistence of the 911 calls. KSP's supplement recounted its search to locate records responsive to Appellant's requests. The agency notes that the 911 system for KSP Post 1 experienced difficulties recording calls in 2017. KSP also provided a copy of the responsive records to this office for verification. We find that KSP made a good faith effort to locate Appellant's 911 calls and, therefore, complied with the Act.
A party aggrieved by this decision may appeal it 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.
Footnotes
Footnotes
1 The date on the KSP response letter sent to Appellant is March 27, 2017. The date appears to be a typographical error.
2 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
3 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
4 KRS 61.880(1) states: "If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."