Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : The Radcliff Police Department ("RPD") initially failed to provide any explanation for the nonexistence of responsive records as required by the Open Records Act, but remedied that error on appeal. In the absence of a prima facie showing that responsive records exist in the possession of RPD, its disposition of the request is affirmed.
Open Records Decision
At issue in this appeal is whether the Radcliff Police Department ("RPD") violated the Open Records Act ("Act") in denying open records requests submitted by Joshua Powell, Investigator with the Capital Trials Branch at the Department of Public Advocacy ("Appellant"). We find that RPD's initial response to the request was deficient in that it failed to provide any explanation for the nonexistence of certain responsive records in a manner required by the Act. However, RPD remedied the error on appeal. In the absence of a prima facie showing that responsive records exist, RPD's disposition of the request is affirmed in accordance with
Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 340-41 (Ky. 2005).
On April 12, 2019, Appellant submitted 19 requests for groups of records to RPD. On April 17, 2019, RPD responded by providing some groups of records. However, RPD denied Appellant's requests for nine groups of records including deposition records from 2012 to 2016, 2012 body camera video recordings, and disciplinary records from 2012 to 2016. RPD denied the responsive records by merely repeating "[t]hese records do not exist."
On May 3, 2019, Appellant appealed the denials of the nine groups of records, stating, "I received no documentation of what steps were taken to locate these records, only a 'these records do not exist.'" Appellant argued that decisions of this office required RPD to explain the nonexistence of the records. Appellant stated that he was specifically appealing RPD's responses denying nine requests relating to depositions, disciplinary records, and body camera video records associated with four federal civil lawsuits against the City of Radcliff. He argued that RPD is required to retain records related to the lawsuits by, "state law, record retention laws and prior Open Records Decisions." However, Appellant did not cite any law or prior decisions of this office to support that argument.
On May 8, 2019, Radcliff City Attorney Michael A. Pike responded to the appeal on behalf of RPD. Regarding the requests for deposition records, RPD argued that no officer or employee of the City of Radcliff, "has or has ever had in his or her possession, custody or control any copies of the deposition recordings or deposition transcripts" requested by Appellant. RPD provided addresses for the courts pertinent to the requested depositions, and suggested that Appellant contact the courts for copies of the requested records. Regarding the requested disciplinary records, RPD argued, "these records have never been created and do not exist." As for the body camera video recordings, RPD stated, "[RPD] did not have Body Cameras or the ability to create...recordings until March of 2013, and therefore RPD never had and currently has no such recordings[.]" However, RPD did not provide a description of its search for responsive records.
Pursuant to KRS 61.880(2)(c) 1and 40 KAR 1:030 Section 3, on May 16, 2019, this office requested that RPD supplement the appeal record with a "description of the search for responsive records and identify the person(s) that conducted the search[.]" On May 29, 2019, RPD responded to our request by describing the search for responsive records. RPD identified four RPD officers and Radcliff City Clerk Jeffery S. England as the employees who searched for responsive records. RPD also identified the locations searched, including RPD officer personnel files, case investigation files, and RPD electronic files. RPD stated, "[t]he City typically does not prepare, own, use, obtain or retain copies of the deposition transcripts in the normal course of business[.]"
RPD initially failed to describe its search for responsive records, but corrected the error on appeal. The Attorney General has consistently found that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-042, pp. 3-4. Rather, the right to inspect attaches only 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. In order to satisfy its burden of justifying its denial per KRS 61.880(2)(c), however, a public agency must offer some explanation for the nonexistence of the records in dispute at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. As such, RPD was required to "expend reasonable effort to identify and locate the requested records." 95-ORD-96, p. 7 (a public agency is not required to "conduct an 'exhaustive exhumation of records,'" but is required "'to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested.'")
RPD's initial response was deficient because it did not provide an explanation for the nonexistence of the requested records. A public agency's response violates the Act when it fails to provide an explanation for the nonexistence of the records in dispute. See 11-ORD-111, pp. 3-4; 11-ORD-074, pp. 3-5; 15-ORD-210. RPD's initial response stating only that records do not exist was, at best, "limited and perfunctory." 2Such a response is substantively and procedurally, deficient. 11-ORD-111, p. 5. However, on appeal RPD provided a detailed description of the search for responsive records and identified the staff that conducted the search. Therefore, we find that RPD corrected the error on appeal.
Appellant also argued that RPD violated the Act because it does not possess the deposition records. However, no evidence exists in the record that RPD is required to possess the responsive records. This office has affirmed public agency denials of requests based upon the nonexistence of responsive public records in the absence of a prima facie showing that records being sought did, in fact, exist in the possession of the agency. See 06-ORD-042; 07-ORD-188; 08-ORD-189; 11-ORD-209. See
Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d, 333, 340-341 (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"). We also recognize that, "the 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." 11-ORD-074, p. 2. However, the agency can overcome this presumption by explaining why the record does not exist. Id.
Appellant has not made a prima facie showing that RPD possesses responsive records. The record establishes that RPD was a party to the federal civil cases, but no facts exist in the record that RPD came into possession of depositions or transcripts created as part of that litigation. There is also no evidence that RPD created body camera videos or disciplinary records as part of that litigation. Appellant has not cited any legal authority requiring RPD to possess or create the disputed records. Even assuming such authority existed, RPD explained why the records do not exist by showing that the agency does not keep depositions and transcripts "in the normal course of business," and it did not have the ability to create body camera recordings at the time of the litigation.
The record establishes that RPD made the required "good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested," and therefore "it complied with the Act, regardless of whether the search yielded any results." 95-ORD-96, p. 7; 05-ORD-109, p. 3; 14-ORD-004, p. 4. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. In the absence of facts from which existence of deposition transcripts, disciplinary records, or body camera videos can be presumed, or any legal authority mandating the creation and maintenance of such records, this office has no basis on which to dispute RPD's representation that no such records exist. See 11-ORD-074, p. 2. Accordingly, we affirm RPD's denial of these requests.
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 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 Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996).