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 Kentucky State Police ("KSP") violated the Open Records Act ("Act") in the disposition of six open records requests submitted by Attorney Sharon Allen ("Appellant"). For the reasons stated below, we find that KSP violated the Act when it failed to timely produce responsive records, per KRS 61.880(1), and failed to properly invoke KRS 61.872(5) and provide the statutorily-required adequate explanation of the cause for delay. KSP's 68-day delay in responding to four requests, and 88-day delay in responding to two requests subverted the intent of the Act within the meaning of KRS 61.880(4). 1KSP did not violate the Act when it denied a request based on the nonexistence of responsive records where it conducted a good faith search for the responsive maintenance logs.
On September 13, 2019, Appellant submitted a request to KSP seeking six categories of records relating to KSP Trooper Nick Brumback's training to operate speed measuring devices, and maintenance records for the speed measuring device assigned to the Trooper's vehicle. Appellant also requested a copy of KSP "General Order OM-E-3, Speed Measuring Devices."
On July 30, 2019, KSP delayed responding to the request, stating, "[d]ue to the storage location of this file, it cannot be determined at this time if the records responsive to your request are in existence and possessed by [KSP]." KSP stated that a response would be mailed "on or before August 30, 2019." On September 13, 2019, having received no further response, Appellant filed an appeal with this office. Appellant argued that KSP's failure to respond was an apparent denial of her requests. Appellant argued that KSP subverted the intent of the Act by deferring her access to responsive records for more than a month, and by issuing a blanket denial of her requests without providing an explanation.
On October 1, 2019, KSP responded to the appeal, stating it failed to respond to Appellant's requests "[d]ue to an accidental clerical oversight[,]" but it had "now provided Appellant with all records in its possession responsive to the. . .request." KSP described its search for responsive records, including contacting Tpr. Brumback and searching locations at KSP Academy, KSP Supply Branch, and Tpr. Brumback's assigned post KSP Post 7. KSP argued, "[i]f Appellant alleges KSP has failed to provide responsive records, KSP asserts the records provided to Appellant in conjunction with its October 1, 2019 correspondence are all records in KSP's possession responsive to the Appellant's request." However, KSP did not specifically state which of Appellant's six requests it was denying as nonexistent.
On October 1, 2019, this office requested a copy of the responsive records KSP provided to Appellant, pursuant to KRS 61.880(2)(c) 2and 40 KAR 1:030, Section 3, 3for substantiation. This office also requested clarification of whether KSP was denying records responsive to any of Appellant's requests as nonexistent, and clarification of whether records are nonexistent because KSP never created such records, or because the records were lost or misplaced.
On October 21, 2019, KSP clarified that it had provided Appellant records responsive to requests 1, 3, 5, and 6, but stated, "following receipt of the October 1, 2019 correspondence from your office, [KSP located] records responsive to item (2) of the Appellant's request and provided. . .those records on October 21, 2019." Regarding Appellant's fourth request seeking copies of maintenance logs, KSP stated, "no records were ever created responsive to item (4)[.]" KSP provided another description of its search for responsive records, attached copies of the existing responsive records, and attached evidence that it mailed copies of all existing records to Appellant.
We decline to find the appeal is moot because Appellant argues under KRS 61.880(4) that KSP subverted the intent of Act short of denial of inspection. The Act requires that such complaints "shall be subject to the same adjudicatory process as if the record had been denied." See KRS 61.880(4). KSP states that it made all existing responsive records available for inspection. However, KSP denied some responsive records stating that they do not exist. An agency's inability to produce records owing to their nonexistence is, as we have often noted, tantamount to a denial. See 01-ORD-38. "[U]nless all records identified in an open records request are released,. . .the issue before the Attorney General is not moot." See 09-ORD-007, p. 5. Accordingly, we find the issues on appeal are not moot.
KSP Violated KRS 61.880(1), KRS 61.872(5), and Subverted the Intent of the Act . KSP violated the Act by failing to comply with the time requirements stated in KRS 61.880(1), or properly invoke KRS 61.872(5) in postponing its response to Appellant's requests. 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." A public agency is required to "notify the requester and designate an inspection date not to exceed three days form agency receipt of the request." OAG 92-117, p. 3. "The value of information is partly a function of time."
Fiduccia v. U.S. Dep't of Justice , 185 F.3d, 1035, 1041 (9th Cir. 1999). For this reason, the 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-206. KSP issued a timely written response to the request, but violated KRS 61.880(1) by failing to make the records responsive to items 1, 3, 5, and 6 available for inspection for 68 days, and by failing to make a final disposition of requests 2 and 4 for 88 days.
KSP eventually provided Appellant copies of the existing responsive records during the appeal, but it failed to expressly invoke KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond the three business day requirement of KRS 61.880(1). KSR 61.872(5) provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "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." A public agency is required to expressly invoke KRS 61.872(5) because KRS 61.880(1) requires written notice to the person making the request, within the three-day period, of the agency decision. KSP violated the Act by not expressly invoking KRS 61.872(5) in its written responses and appeal.
KSP also failed to provide the statutorily-required detailed explanation of the causes for the 68 day and 88 day delays. If any of the records being sought were "in active use, in storage or not otherwise available," KSP failed to identify which of the permissible reasons for delay applied or to what extent. KSP's statement that the records were not readily available "[d]ue to the storage location of [the] file" did not meet the specificity requirement of KRS 61.872(5). It was not a "detailed explanation of the cause" for further delay because it "sets forth neither the volume of records involved nor explains, in detail, the problems associated with retrieving the records implicated by the request that would support" the delay in providing the requested records. 02-ORD-217. "In the absence of a legitimate detailed explanation of the cause for delaying access" we find that KSP failed to provide Appellant "timely access" to the existing responsive records. 15-ORD-141, p. 5. The excessive delays subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4). Id. ; 17-ORD-110; 18-ORD-157.
KSP Did Not Violate the Act by Failing Produce Nonexistent Records Because it Conducted a Good Faith Search . KSP's initial response Appellant's fourth request seeking copies of maintenance logs, and the initial appeal response, were deficient because KSP failed to provide an explanation for the nonexistence of responsive records. On appeal, KSP explained that it never created responsive maintenance logs, and provided as evidence a detailed description of the search for responsive records. As such, KSP met its duty under the Act.
The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the possession of the agency. 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-091. However, in order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records. See
Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011).
A public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p. 4. Agencies meet the "good faith" standard by sufficiently document the effort to identify and locate responsive documents and explain why the records do not exist. Because KSP conducted search that met the "good faith" standard, and affirmatively indicated that no responsive records existed in the custody or possession of the agency, it complied with its duties under the Act, regardless of whether the search yielded any results. See 05-ORD-109, p. 3; 01-ORD-38; 12-ORD-030. Appellant "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses such records as [she] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. In the "absence of any facts or law importing the record's existence," we find no violation of the Act. See 11-ORD-037.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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(4) states, in relevant part, "[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 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."
3 40 KAR 1:030, Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."