Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Kentucky State Police procedurally violated the Open Records Act by failing to make a timely disposition of an open records request and by failing to respond to most portions of the request; KSP substantively violated the Act by failing to explain why it did not possess a letter identified in its own report as an attachment. KSP did not substantively violate the Act where it did not possess records and the facts established no presumption to the contrary. This office makes no finding of violation as to an earlier request where receipt of request is disputed.
Open Records Decision The question presented in these consolidated appeals is whether the Kentucky State Police ("KSP") violated the Open Records Act in the disposition of R. G. Dunlop's May 30, 2019, and July 1, 2019, requests for various records relating to KSP's investigation of the Carter County Jail and Jailer R. W. Boggs. For the reasons that follow, we make no finding as to the first request, as the record is not conclusive that KSP received the request. As to the second request, we find that KSP procedurally violated the Act by responding in an untimely manner and failing to assert the nonexistence of multiple items. We also find that KSP substantively violated the Act by failing to explain the nonexistence of one item presumptively in KSP's possession.
Mr. Dunlop received no response to his first request, which he sent on May 30, 2019, as shown by an automatic fax confirmation page bearing that date. Although Mr. Dunlop made several attempts in the ensuing weeks, by e-mail and telephone, to confirm receipt of his fax, KSP refused to confirm or deny receipt.
On appeal, KSP, for the first time, denied ever having received the fax. 1Although we cannot condone KSP's course of conduct in failing to communicate with Mr. Dunlop, this office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See 12-ORD-204. Therefore, we cannot conclusively find that the lack of response was a violation of the Open Records Act. 12-ORD-223. If KSP did receive the May 30 request, however, it violated the Act by failing to respond. Furthermore, given the fact that the confirmation page showed Mr. Dunlop's fax was successfully transmitted, it would be advisable for KSP to examine its equipment maintenance practices or its procedures for handling incoming faxes to ensure that no future open records requests are missed.
On July 1, 2019, Mr. Dunlop sent a second, identical request by e-mail. 2He listed 23 items or categories of records relating to KSP's investigation, including invoices, cancelled checks, bank records, money orders, recorded interviews, telephone conversations, letters, audit documents, and tax records. On July 3, 2019, KSP's records custodian replied: "Due to the storage location of this file, the records are not immediately available. However, I have requested a copy of the records be forwarded to this office. The information will be released to you, to the extent required under the Kentucky Open Records Act, upon completion of the review. The records or a letter stating the status of your request should be mailed to you on or before August 3, 2019."
KRS 61.880(1) requires that a public agency make a disposition of a request for public records within three days, excluding weekends and legal holidays. KRS 61.872(5), however, allows for an exception:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In this case, KSP's vague reference to "the storage location of this file" did not satisfy this requirement of "a detailed explanation of the cause." 19-ORD-002; 18-ORD-174; 18-ORD-157. Furthermore, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection." 01-ORD-38. As KSP gave no date certain, but merely projected that Mr. Dunlop "should" receive either records or a status report, its response failed to satisfy the conditions of KRS 61.872(5). Thus, we find that KSP did not timely dispose of the request, in violation of KRS 61.880(1).
On August 2, 2018, KSP made some records available to Mr. Dunlop. Its letter, however, gave no indication that any of the requested records were nonexistent or were not in KSP's possession. The only redactions or omissions KSP identified were personal identifiers removed for privacy reasons under KRS 61.878(1)(a). In his appeal dated August 13, 2019, 3Mr. Dunlop did not dispute the redaction of personal identifiers, but complained that KSP provided him only bank records, omitting his 22 other categories of records and giving no "explanation of which records ... were being withheld, and why."
In a response to the appeal dated September 12, 2019, KSP asserted that the investigating officer had confirmed that the bank records Mr. Dunlop received "were the only records in KSP's possession [that were] responsive." Thus, KSP argues that it fully complied with the Open Records Act by providing the bank records.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. In responding to an open records request, however, it is "incumbent on the [public agency] to assert the nonexistence of any responsive record." 19-ORD-028. Therefore, when a record does not exist in the agency's possession, "a written response that does not clearly so state is deficient." 02-ORD-144. By omitting such statement, KSP failed to address any of the categories of records Mr. Dunlop requested, other than the bank records it provided. "Failure to address a portion of an open records request is a violation of the Act." 18-ORD-022.
In cases where a public agency has expressly "stated that the records disclosed comprise all existing responsive records," we have found this "tantamount to an affirmative statement that the remaining records requested do not exist." 04-ORD-040. Here, however, KSP made no such assertion, but merely recited the categories of records requested and stated, "Copies of these documents have been obtained and will be released to you upon payment of the appropriate fees." Thus, by failing to respond to 22 out of 23 categories of records requested, KSP violated the Open Records Act.
On appeal, for the first time, KSP alleged that it does not possess the remaining records. "[T]his office has been obliged to affirm public agency denials of requests based upon the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency." 11-ORD-111. As to most of the categories in Mr. Dunlop's request, the record on appeal contains no such prima facie showing. In one case, however, Mr. Dunlop's request specifically indicated that KSP's investigative report stated: "Also attached is a letter of invoice receipt of replacement electronic cigarettes placed into Carter County Jail inventory as agreed." Mr. Dunlop therefore requested a copy of that letter. On appeal, KSP does not dispute that its own report indicates the existence of such an attached letter in KSP's possession.
Where "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," the burden shifts to the public agency to overcome the presumption that they exist by explaining why they do not. 11-ORD-111. Because Mr. Dunlop's uncontested allegations establish that the "letter of invoice receipt of replacement electronic cigarettes" should be in KSP's possession, and KSP did not attempt to rebut this presumption with an explanation, its disposition of that portion of the request "was both procedurally and substantively deficient." Id. Thus, as to that item, KSP substantively violated the Open Records Act. 19-ORD-116.
We therefore conclude that KSP procedurally violated the Open Records Act by failing to make a timely disposition of Mr. Dunlop's request of July 1, 2019, and by failing to respond to 22 out of 23 items in the request. Additionally, we find that that KSP substantively violated the Act as to the "letter of invoice receipt of replacement electronic cigarettes," but did not substantively violate the Act as to the remaining items. As to the request of May 30, 2019, we make no finding, as KSP's receipt of the request is in dispute.
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 proceedings.
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