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 Northpoint Training Center ("NTC") violated the Open Records Act in denying an open records request submitted by Appellant Blane Seeber. 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 26, 2018, Appellant submitted a Request for Inspection of Records form to NTC seeking a copy of any and all medical records, nurse's notes, process notes, and physician notes for himself for the period of August 8, 2018, through September 9, 2018. He also requested a copy of all photos of his injuries taken after a physical altercation with two officers on August 9, 2018. NTC received the request on October 3, 2018, and timely responded on October 10, 2018. NTC provided the requested medical records, but did not find any photos in his medical file. In response to this appeal, NTC also looked at the associated Extraordinary Incident Report and did not find any photos.
NTC complied with the Act when it denied Appellant's request for the requested photos because such a report did not exist. NTC cannot produce nonexistent records for inspection or copying. See
Bowling v. Lexington Fayette Urban Cnty. 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, 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 requested photos did not exist. NTC confirmed that it searched for the suspected photos in multiple locations: in Appellant's medical files and in the Extraordinary Incidence Report. Accordingly, we find that NTC complied with the requirements of the Open Records Act.
Finally, Appellant argues that if photos were not taken, they should have been taken. Appellant argues it was against internal policy to not take photos of his injuries, though he provided no proof of such internal policy. However, whether NTC complied with an internal policy or not may not be adjudicated in an open records appeal. This office may only determine whether NTC complied with the Open Records Act, not whether it complied with its own internal policies. 99-ORD-121. NTC did not violate the Open Records Act and whether or not it failed to follow its own internal policy, to the extent one exists, is not relevant to that determination.
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.