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 Madison County Sheriff's Office ("MCSO") violated the Open Records Act in the disposition of Dawn Crawford's ("Appellant's") requests for records. For the reasons stated below, we find that MCSO violated the Act when it failed to advise Appellant that a policy regarding handling of complaints did not exist. In the absence of irrefutable proof, this office is unable to find that MCSO violated the Act by failing to inform Appellant of the nonexistence of body cameras and vehicle cameras. However, MCSO did not violate the Act when it declined to create a list of body cameras and vehicle cameras to satisfy Appellant's request for information. Appellant asks that the Office of the Attorney General assist her in gathering information relating to the existence of the body cameras and vehicle cameras. However, this office is not authorized to conduct an investigation or gather evidence in the context of an open records appeal.
On March 26, 2018, Appellant submitted an open records request with MCSO stating the following:
Per KRS 61.870-61.884, I am requesting the following records: policy/procedure to search a citizens property and/or personal belongings, a listing of any Deputy vehicle with camera's and/or body camera's. In addition, please provide the policy/procedure for filing a grievance and policy/procedure for Deputy's handling complaints.
On March 4, 2018, Appellant received an invoice from MCSO. MCSO charged Appellant for three policies that it described as follows: MCSO Disciplinary Procedures; MCSO Stop, Arrest & Search of Persons; and MCSO Search & Seizure of Residences.
On July 12, 2018, Appellant appealed the disposition of her request. Appellant stated, "I have received the requested policy but no listing of vehicle or body camera's [sic]." Appellant also stated, "I have not received any correspondence related to the request of camera's [sic]." She asks that this office assist her in obtaining information relating to body cameras and vehicle cameras at MCSO.
On July 18, 2018, Captain Samuel A. Manley responded on behalf of MCSO. Cpt. Manley stated that both MCSO and the Madison County Attorney responded to Appellant's request by providing her with copies of the requested policies. Regarding the requests related to body cameras and vehicle cameras, Cpt. Manley states that MCSO did contact Appellant. He states that Appellant "was advised that the [MCSO] does not utilize or have Body Cams or Vehicle Cams, nor do we have any Policy/Procedures on Body/Vehicle Cams."
On July 20, 2018, this office requested copies of the policies provided to Appellant for substantiation, pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3. 2 Cpt. Manley responded by providing copies of the MCSO policies that MCSO and the Madison County Attorney provided to Appellant. However, Cpt. Manley stated that, "[w]e do not have a policy on Handling Complaints[.]"
MCSO violated a procedural requirement of KRS 61.880(1) 3 when it failed to advise Appellant whether a record responsive to her request for a "policy/procedure for Deputy's handling complaints" existed. We have consistently found that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency). 04-ORD-205, p.4; 12-ORD-056; 11-ORD-122. MCSO failed to discharge its duty under the Open Records Act when it failed to provide Appellant a written response containing an affirmative indication that the policy she requested did not exist.
Appellant argues that she did not receive any correspondences relating to her request for body cameras and vehicle cameras. However, MCSO claims that their office and the County Attorney's office advised Appellant that MCSO does not utilize vehicle and body cameras and, as such, no list of cameras existed. The Attorney General cannot resolve factual disputes relating to the actual delivery and receipt of an open records request or agency response. 09-ORD-023; 08-ORD-066. The record on appeal does not prove or disprove the claim of either party. In the absence of any irrefutable proof, this office is unable to find that MCSO violated the procedural requirements of KRS 61.880(1) as it relates to informing Appellant of the nonexistence of a list of body and vehicle cameras, and any related policies.
This office finds no substantive violation of the Act in MCSO declining to create a record to satisfy Appellant's request for information relating to body cameras and vehicle cameras. MCSO informed Appellant that the agency did not utilize body cameras and vehicle cameras and, therefore, there were no records relating to those items. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98; 18-ORD-008. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, MCSO discharged its duty under the Act by communicating to Appellant that no such records exist.
Further, no basis exists for finding that MCSO has an undisclosed record of body cameras and vehicle cameras for inspection. The burden of proof in an open records appeal is imposed on the public agency, pursuant to KRS 61.880(2)(c). However, The Act does not require the public agency 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. This office has found 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, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. However, Appellant does not make a prima facie showing that any authority directs MCSO to utilize body cameras or vehicle cameras. By extension, there is no authority directing MCSO to create or maintain such a list for inspection.
We must respectfully decline Appellant's request that this office assist her in obtaining information relating to the existence of body cameras and vehicle cameras at MCSO. This office is not authorized to conduct investigations or gather evidence in the context of resolving an open records appeal. See 17-ORD-049 p. 2. KRS 61.880(2)(a) 4 provides this office jurisdiction to review open records appeals and issue a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884, but not to conduct investigations. Even assuming that MCSO uses body cameras and vehicle cameras, this office cannot direct a public agency to create records "or declare its failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 15-ORD-164; 17-ORD-276. Agencies "are not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4; OAG 76-375.
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. 180:
Footnotes
Footnotes
1 KRS 61.880(2)(c) states in pertinent part: "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."
2 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."
3 KRS 61.880(1) states in pertinent part: "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."
4 KRS 61.880(2)(a) states: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."