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 Louisville Metro Police Department ("LMPD") violated the Open Records Act in denying the April 19, 2019, request by Jacob Ryan, Kentucky Center for Investigative Reporting ("Center"), for any arrest citation associated with Incident # 8018013552." In a timely response per KRS 61.880(1), Public Information Officer Alicia Smiley stated that LMPD "is not the official custodian of records for arrest citations. Please contact the Jefferson [C]ounty Office of the Circuit Court Clerk [at] jeffersonocccmedia@kycourts.net." Quoting the definition of "public record" found at KRS 61.870(2), Mr. Ryan argued on appeal that LMPD prepares and uses arrest citations; it also possesses and retains arrest citations. Accordingly, he maintained that LMPD should provide him with a copy of the requested citation. 1
He further asserted that KRS 17.150(4) requires a criminal justice agency such as LMPD to "retain the documents which are the source of information collected by the Justice and Public Safety Cabinet [("Cabinet")] that consist of 'identifiable descriptions and notations of arrests. '" Lastly, he noted that law enforcement agencies have consistently disclosed arrest citations in the past and this office has "repeatedly held that law enforcement arrest reports are a matter of public record and public interest" and should be subject to public scrutiny. Based upon the following, this office finds that LMPD did not violate the Open Records Act in ultimately denying the request based upon the nonexistence of the requested citation; LMPD is not required to "prove a negative" to refute an unsubstantiated claim that such a record was created. However, the initial response by LMPD was deficient under KRS 61.880(1) and therefore violated the Act. See 18-ORD-164.
Upon receiving notification of Mr. Ryan's appeal, Assistant Jefferson County Attorney Annale R. Taylor provided a detailed and through response on behalf of LMPD. She first noted that LMPD immediately noticed its error in referring Mr. Ryan to the Circuit Court Clerk's Office and stated that LMPD should have directed him to the Administrative Office of the Courts ("AOC") per KRS 61.872(4) because AOC is the custodian of citations. She further explained:
LMPD utilizes the Kentucky Open Portal System (KYOPS) to write arrest citations (also known as Uniform Citations). KYOPS is the records management system owned and maintained by the Kentucky State Police [("KSP")]. LMPD is required to turn over to the [Cabinet], through KSP, certain criminal offense information for the purpose of creating a centralized criminal history database. See KRS 15A.190 ; KRS 17.110, et. seq . and corresponding [Kentucky Administrative Regulations]. As a result, KSP created and maintains KYOPS to make reporting easier. [AOC] is also statutorily charged to cooperate with the [Cabinet] and other agencies to maintain the centralized criminal history database, which is created, in part, by the submission of arrest citations.
When an officer fills out an arrest citation on KYOPS, it is automatically submitted to KSP rather than retained by LMPD. LMPD does have access to KYOPS in order to retrieve copies of the arrest citation which explains why there are certain instances in which an LMPD officer has a copy of an arrest citation which may be turned over in response to an open records request.
Ms. Taylor noted that reporters generally obtain copies of the arrest citations each day from AOC and then call the LMPD Public Information office ("PIO") for an interview regarding a specific citation. Accordingly, the PIO receives a daily fax from the AOC containing a copy of each arrest citation submitted the day before. The PIO retains the faxed copies for one month. Thus, LMPD only has in its possession a copy of an arrest citation, barring special circumstances, for the last calendar month. Assuming that a responsive arrest citation exists, but was not created within the last month, she continued, LMPD is not obligated under existing legal authority to procure or to retrieve the record from the AOC.
When the PIO received Mr. Ryan's request, it "erroneously assumed" that a responsive citation existed given that he specifically asked for the citation whereas the requests that LMPD generally receives ask for "additional records relating to" a specific incident number. Because LMPD is not the custodian of arrest records, it should have referred him to the AOC, but mistakenly referred him to the Circuit Court Clerk's Office. However, upon receipt of Mr. Ryan's appeal, the PIO conducted another search of records pertaining to the specified incident to ensure that no one within the agency possessed a copy of the requested citation. LMPD ultimately discovered that no arrest was made in connection with Incident No. # 8018013552.
Accordingly, the correct response to Mr. Ryan, which LMPD provided on appeal, is that no citation responsive to his request exists. In addressing his claim regarding KRS 17.150(4) , Ms. Taylor explained that it only requires LMPD to retain "any documents it maintains that are also the source of information collected by the [Cabinet] for the centralized criminal history information database. " LMPD is not required to retain and maintain copies of the documents it submits to the Cabinet. Further, LMPD has an electronic records management system called ILEADS, which derives the information it submits from KYOPS to store internally. Thus, LMPD does retain the "source of information submitted to the [Cabinet]."
The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In other words, the Act only applies to records which are in existence, and in the possession or control of a public agency. 99-ORD-202, p. 5; 16-ORD-019. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request." Id. 2
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 Cty. 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; 11-ORD-091. 3 Compare
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011);
Cabinet for Health and Family Serv. v. Todd Cty. Std., 488 S.W.3d 1, 3-4 (Ky. App. 2016). 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; 18-ORD-080.
However, in construing KRS 61.880(1), the Court of Appeals has held that, "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; 18-ORD-175.
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. Thus, 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. It was "therefore incumbent on [LMPD] to ascertain whether records exist[ed] that [were] responsive to [Mr. Ryan's] request, to promptly advise him of [its] findings, and to release to him all existing [nonexempt] records identified in his request. " 03-ORD-207, p. 3. Insofar as LMPD initially failed to affirmatively indicate that no documents responsive to Mr. Ryan's request for the specified arrest citation exist in the possession of the agency, its original response was deficient. See 09-ORD-145; 16-ORD-104; 17-ORD-204; 18-ORD-175. LMPD was unable to discharge this duty because it failed to conduct a reasonable search to locate any existing responsive document(s) before denying the request. See 13-ORD-205; 16-ORD-255. Compare 15-ORD-167. However, LMPD ultimately discharged its duty in conducting a reasonable search, notifying Mr. Ryan that no responsive citation existed, and providing a credible explanation for the nonexistence of such a record.
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 [P]olice incident reports, as opposed to investigative files, are not, generally, exempt from public inspection" pursuant to KRS 17.150. See 09-ORD-205; 17-ORD-121.
2 This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act." 99-ORD-202, p. 5. Rather, "lack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13; See 00-ORD-207; 04-ORD-123; 05-ORD-015; 06-ORD-147; 08-ORD-206.
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). LMPD appears to have ultimately conducted a reasonable search and our decision affirming its denial is premised on this assumption. "Absent proof that [LMPD] 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.