Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bullitt County Sheriff's Office ("BCSO") violated the Open Records Act ("Act") in its disposition of a request for a copy of an investigation file submitted by attorney Alton Priddy of Priddy, Cutler, Naake and Meade PLLC ("Appellant"). We find that BCSO violated KRS 61.880(1) as it related to Appellant's request for an investigation file, and failed to properly invoke KRS 61.872(5) in delaying its response to that request. BCSO cannot provide a requester a copy of a nonexistent record, and this office cannot find that BCSO violated the Act in denying a request for a nonexistent record. However, the applicable record retention schedules required BCSO to maintain a copy of the requested investigation file for a minimum of five (5) years. Accordingly, we find that BCSO subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for managing and retaining the responsive investigation file. A referral to the Kentucky Department for Library and Archives is appropriate.
On June 12, 2019, Appellant submitted an open records request to BCSO seeking a copy of "[t]he complete investigation file on Scott Ellis, Mayor of Shepherdsville, compiled by Deputy Lynn Hunt during the periods of 2013, 2014, and 2015[.]" On June 14, 2019, BCSO provided Appellant a copy of the original offense report, but delayed providing copies of the requested investigation file, stating, "[w]e are currently attempt[ing] to locate a hard copy and/or digital copy of the investigation file. I will be sending you an update shortly." BCSO failed to indicate whether the responsive record was in active use, in storage, or otherwise unavailable, and failed to provide a date certain upon which the responsive records would be available.
On August 22, 2019, Appellant sent a letter to BCSO seeking an update on the status of the search, but received no response. On September 8, 2019, Appellant appealed to this office, arguing, "[t]he failure of [BCSO] to respond, whether inadvertent, accidental, or intentional, subverts the intent of KRS 61.880 et seq. " On September 18, 2019, BCSO responded to the appeal, stating, "I have been trying to locate the records pertaining to the investigation and have been unable to do so." BCSO briefly described its search for responsive records and stated, "we have been unable to locate anything other than the report previously submitted. . .on June 14, 2019." BCSO provided this office a copy of a September 19, 2019 response to Appellant's follow-up letter, but failed to explain the cause of the 98-day delay.
On September 24, 2019, this office requested clarification of BCSO's appeal response, pursuant to KRS 61.880(2)(c). 1 We asked that BCSO clarify whether the public agency was unable to locate the requested investigation file because the responsive record was never created or existed; was lost or misplaced; or was destroyed. We also asked that BCSO describe the locations searched and the individuals participating in the search for the responsive investigation file.
On October 3, 2019, BCSO provided this office and Appellant a supplement to the appeal response identifying the staff and officers who searched for the responsive investigation file. BCSO described its search as "exhaustive," and stated the search included, "case file logs for 2014 and 2015, searching the electronic files of Deputy Lynn Hunt, [and] searching the electronic files of all Detectives (current and former)." BCSO stated that it interviewed former Deputy Lynn Hunt, who stated, "she did create an investigation file but was terminated prior to completing her investigation and the file remained with [BCSO]." However, BCSO stated that it could not locate the responsive investigation file. BCSO stated that the current administration took office on January 7, 2019 and "has not destroyed or removed any investigation file following this date."
BCSO Violated KRS 61.880(1) and KRS 61.872(5) . BCSO complied with KRS 61.880(1) by timely providing Appellant a copy of the original offense report, but BCSO's response was deficient as it related to the requested investigation file. KRS 61.880(1) dictates the procedure that a public agency like BCSO must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." The Act requires a public agency to do more than merely inform the requester that it will comply. "[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-153. Therefore, BCSO's initial response violated KRS 61.880(1) because it merely stated the agency would comply with the request. Accordingly, BCSO violated KRS 61.880(1).
BCSO also violated KRS 61.872(5), the only provision of the Act that authorizes postponing the mandatory deadlines in KRS 61.880(1). KRS 61.872(5) authorizes a delay beyond three working days only "[i]f the public record is in active use, in storage or not otherwise available," but BCSO failed to state which of these permissible grounds for delay, if any, applied to the responsive investigation file. A public agency must expressly invoke KRS 61.872(5) when delaying a response due to the mandatory nature of KRS 61.880(1), but BCSO failed to expressly invoke the statute to delay responding to the request for the investigation file in both the initial response and on appeal.
BCSO also failed to provide a detailed explanation of the cause for further delay. KRS 61.872(5) requires that a public agency, "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. " BCSO's statement that, "I will send you an update shortly," failed to provide an earliest date certain on which the investigation file would be available, or upon which BCSO would inform Appellant of grounds for denying the request, as required by KRS 61.872(5). See 01-ORD-38; 16-ORD-153. Accordingly, BCSO failed to meet the specificity requirements of KRS 61.872(5).
BCSO Cannot Provide Access to a Nonexistent Record . BCSO cannot provide Appellant access to an investigation file that does not exist or is not in the possession of the agency. As such, this office cannot find that BCSO violated the Act when it denied a copy of the investigation file based on its nonexistence. The statutorily-guaranteed right of inspection attaches only if the record in dispute is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response 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 Open Records Act in affirmatively indicating that no such record exists, or advising that it lacks possession and explaining why, as BCSO ultimately did on appeal. 13-ORD-052, p. 3. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records, and it is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-136, p. 2; 11-ORD-104. As such, we cannot find that BCSO violated the Act when it denied the request based on the investigation file's nonexistence.
BCSO Subverted the Act . BCSO cannot produce that which it does not have, nor is it required to "prove a negative" in order to refute a claim that an investigation file exists, under
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") and decisions of this office applying the rule announced in that case. See 11-ORD-091. However, BCSO does not deny that Deputy Lynn Hunt created a responsive investigation file in either 2014 or 2015. Deputy Lynn Hunt confirmed the investigation file remained with BCSO when her employment ended. Further, BCSO denies it destroyed the responsive file. Accordingly, Appellant has made his prima facie showing, and BCSO must justify the nonexistence of the investigation file.
The intent of the Act has been statutorily linked to the intent of KRS Chapter 171. Under KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870-61.880, and the State Archives and Records Act, KRS 171.410-171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8; 11-ORD-104. In sum, "the key to records access is effective records management." Id. , p. 10; 11-ORD-051. Accordingly, there is a higher standard of review applied when denials are based upon the nonexistence of the records being sought. In order to satisfy its burden of justifying a denial under KRS 61.880(2)(c), "a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate." 11-ORD-104, p. 5. "Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. " 11-ORD-104, p. 5; 13-ORD-024.
BCSO has failed to rebut the presumption of records mismanagement. Our review of the Local Government General Records Retention Schedule issued by the Kentucky Department for Libraries and Archives shows that the applicable retention schedules are the Investigations other than Felonies File at L4663, and the schedule for Felony Investigation Case File at L4662. The retention schedules establish a five year retention period for misdemeanor investigation files, and an 80-year retention period for felony investigation files. As such, the record establishes that BCSO either lost or misplaced the responsive investigation file, or destroyed the responsive record before the expiration of the applicable retention schedule. Accordingly, this office refers the matter to KDLA in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted. See 11-ORD-104; 13-ORD-205.
Although we do not find, as a matter of law, that BCSO violated the Act by failing to provide Appellant a copy of the investigation file, we do find that BCSO subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records, "thereby frustrating the public's right of access." 10-ORD-130, p. 5; 13-ORD-205.
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: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. 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."