Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Northpoint Training Center ("NTC") violated the Open Records Act in denying an open records request submitted by Appellant Uriah Pasha. For reasons stated herein, we find that NTC did not violate the Act when it denied a request for records that did not exist.
On September 18, 2018, Appellant submitted a Request for Inspection of Records form to NTC seeking a "copy of Sgt. Rainwater's Information Report" connected to an Extraordinary Occurrence Report ("EOR"). NTC received the request on September 19, 2018, and timely responded on September 25, 2018. NTC informed Appellant that Sergeant Rainwater did not complete an information report and there was no such report attached to the EOR referenced by Appellant.
NTC complied with the Act when it denied Appellant's request for Sergeant Rainwater's report because such a report did not exist. NTC cannot produce nonexistent records for inspection or copying. See
Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. The Attorney General has long recognized that a public agency cannot grant a requester access to nonexistent records. 07-ORD-190, p.6; 06-ORD-040; 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150; 09-ORD-088; 04-ORD-043. However, the Attorney General does require that the agency offer some explanation for the nonexistence of records. See 11-ORD-041, p.2; 10-ORD-222. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195.
NTC affirmatively stated that the information report did not exist. Further, NTC informed Appellant that Sgt. Rainwater stated herself that she did not complete an information report. In response to this appeal, NTC affirmed that Sgt. Rainwater did not complete an information report because she was not involved in the actual incident. NTC examined the EOR and found that all information reports were attached to the EOR and there was no information report completed by Sgt. Rainwater. Accordingly, we find that NTC complied with the requirements of the Open Records Act.
A party aggrieved by this decision shall 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.