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 Kentucky State Police ("KSP") violated the Open Records Act in the disposition of Margaret O'Donnell's June 7, 2018, request for "any and all documents of any kind relating to access of the public to the Kentucky State Capitol." Ms. O'Donnell's request "applies to all buildings on the Capitol grounds, including the Capitol building, the Capitol Annex, the Kentucky Capitol Education Center and the Governor's Mansion." Ms. O'Donnell described 12 categories of records that her June 7 request encompassed.
By letter directed to Ms. O'Donnell on June 12, 2018, KSP Official Custodian of Records Stephanie A. Dawson stated that she was enclosing a copy of the "Kentucky State Capitol [A]pplication [T]o [U]se the Commonwealth Facilities[, which] includes areas for available use and the rules for use of the public areas for the Capitol and grounds." Ms. Dawson also included "a letter from Richard Sanders, the Commissioner of [KSP] to Representative [Attica] Scott and Representative [George] Brown stating the protocol of limiting members of a protest group in the Capitol Building." KSP neither confirmed nor denied the existence of the remaining documents requested. KSP also failed to comply with KRS 61.872(4), pursuant to which, "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " See 14-ORD-156.
On appeal, Ms. O'Donnell noted that in responding to Representatives Scott and Brown, KSP explained the Poor People's Campaign had not obtained a permit to protest inside of the Capitol; she indicated that no such application exists. Ms. O'Donnell further noted that KSP indicated "this protocol was based upon crowd training and experience." According to Ms. O'Donnell, "a new protocol has been enacted after a meeting of 'several interested agencies.' However, it has not been produced. Nor does the response list an exemption under which the records are withheld." 1 Upon receiving notification of Ms. O'Donnell's appeal from this office, KSP Staff Attorney Cody Weber reiterated the agency's original response. In addition, he clarified that KSP enclosed "all records in its possession responsive to the request" with its original response. Citing a line of decisions by the Office of the Attorney General, KSP stated that a public agency cannot honor a request for nonexistent records because it cannot produce records that it does not possess. 2 Based upon the following, this office finds the agency's initial response deficient but affirms the agency's ultimate disposition of Ms. O'Donnell's request based on the nonexistence of additional responsive documents within the possession of KSP. See 18-ORD-164.
This office has consistently recognized that 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 a claim that certain records exist in the absence of a prima facie showing by the complainant. 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"); 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. 3 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" ); 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"). 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. When some of the documents requested have been disclosed, this office has generally declined 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 89-81, p. 4.
However, in construing KRS 61.880(1), the Court of Appeals held, "The language of the statute directing agency action is exact. It 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). A "limited and perfunctory response," the Court recognized, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. (public agency did not deny it was the custodian of the records nor did the agency "include information relevant to obtaining the records from a different source" per KRS 61.872(4) and its response was therefore deficient) ; 01-ORD-183, pp. 2-3; 07-ORD-139; 11-ORD-158. Thus, in addressing the obligations of a public agency denying access to public records based upon their nonexistence or its lack of possession, this office has consistently 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); 12-ORD-162.
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; OAG 90-26, p. 4; 09-ORD-145; 10-ORD-215. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but a public agency discharges its duty under the Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3; 04-ORD-205, p. 4; 09-ORD-145. Insofar as KSP initially failed to affirmatively indicate that no additional documents responsive to Ms. O'Donnell's request for 12 categories of documents exist in the possession of the agency, its original response was deficient. See 09-ORD-145; 10-ORD-215; 14-ORD-107; 16-ORD-104; 17-ORD-204. KSP remedied this deficiency on appeal.
Because the record was initially unclear as to what search methods KSP had employed to identify and locate all existing responsive documents, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, this office requested additional information. Specifically, this office asked KSP to describe in detail the methods it employed in searching for all existing documents responsive to Ms. O'Donnell's request, "including but not limited to: a list of all groups to which permits were issued or denied to enter and use the Capitol from July 1, 2017; a list of all groups that entered the Capitol; the applicable fire and building codes; all documentation relating to 'any security incidents' that have occurred in the Capitol; 'all documents relevant to maintenance projects proposed, ordered, or undertaken between May 14 and the present'; and a copy of any records documenting electrical problems that have arisen both inside and outside of the Capitol." This office also requested that KSP indicate whether it "searched for any communications regarding the 'newly-enacted policy,' and whether any such records, including, for example, e-mails, were created or still exist." If KSP created any responsive documents in the course of developing or implementing the relevant "policy" (formal or informal), this office continued, "but subsequently destroyed those records, please identify those records and cite the authority pursuant to which said records were destroyed. "
By letter dated August 13, 2018, Mr. Weber responded on behalf of KSP. In order to locate documents responsive to Ms. O'Donnell's request, Mr. Weber stated, Ms. Dawson contacted KSP General Counsel Shawna Kincer "because Ms. Kincer had knowledge of any 'newly enacted policy' or other responsive records that may have been created or in existence as she had knowledge of the situation and previously had discussions with other agency personnel regarding rules, regulations and/or policies involving the Capitol." Ms. Kincer informed Ms. Dawson that no responsive documents were created except for the application form and the Commissioner's June 8, 2018, letter. Further, KSP noted that pursuant to KRS 42.019, "the Kentucky State Capitol Finance & Administration Cabinet ["Cabinet"], Department for Facilities & Support Services, Division of Historic Properties, is 'responsible for overseeing the management and preservation of state-owned historic properties, including but not limited to . . . the State Capitol." Accordingly, KSP stated pursuant to KRS 61.872(4) that the Cabinet "would have custody and control of any responsive documents related to" all of the categories described in the July 31, 2018, request for additional information sent by this office. KSP enclosed a copy of the Cabinet's Open Records Request Form as a courtesy and reaffirmed that "no further responsive records [are] in existence beyond the records previously provided to [Ms. O'Donnell]."
Ms. O'Donnell "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses such records as she has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no [additional] records exist [in the custody or control of KSP]." 09-ORD-214, pp. 3-4. See 12-ORD-065 (appellant reasonably assumed that a "resignation letter" existed in light of statement by public official but relied on what could "generally be described as conjecture or assumption which, however logical, does not constitute proof"); 14-ORD-049. That is particularly true in light of the additional information that KSP provided upon request to substantiate its denial. See KRS 42.019(1). In the absence of the requisite prima facie showing, or any objective proof to conclusively refute the position of KSP, this office affirms the agency's ultimate disposition of the request per Bowling and prior decisions of this office.
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 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 As in past decisions, "the Attorney General finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in this forum, and therefore declines to assign error on that basis." 12-ORD-087, p. 5. Insofar as Ms. O'Donnell is questioning the volume, content or value of any documents produced in response to her June 7 request, such an issue is not justiciable in this forum. See 05-ORD-236.
2 In the interest of clarity, this office reaffirms that "mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt." 09-ORD-107, p. 4 (Emphasis added.) See 98-ORD-100; 06-ORD-166; 12-ORD-215. Our holding today does not depart from our precedents establishing that no exception to the Open Records Act "authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency." 12-ORD-215, p. 3 (quoting OAG 91-21). If KSP actually possessed, maintained, used or had custody or control of the records in dispute, regardless of whether the records could also be accessed from another public agency, just as KSP ultimately asserted, it would have a statutory obligation to provide Ms. O'Donnell with copies after making necessary redactions. See 06-ORD-218; 15-ORD-190. Compare 98-ORD-90.
3 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); 18-ORD-164. 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. "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). KSP appears to have ultimately conducted a reasonable search and our decision affirming its denial is premised on this assumption. "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 its good faith. 12-ORD-153, p. 4; 18-ORD-164. 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.