Opinion
Opinion By: Daniel Cameron Attorney General; James M. Herrick Assistant Attorney General
Summary: Because the Louisville Metro Police Department ("Department") failed to respond to an open records request within ten days, it violated the Open Records Act ("the Act") as modified by Senate Bill 150. However, the Department subsequently complied with the Act. The Department conducted a good faith search for responsive records and provided all responsive records to the requester.
Open Records Decision
On October 28, 2020, Newsy ("Appellant"), a media organization, requested copies of "all documents, memos, report's [ sic ] and plans that outline [the Department's] response, adoption and implementation of President Obama's 21st Century Policing report" since January 1, 2015. Although the Department acknowledged receipt of the Appellant's request, it did not provide a response within ten days. This appeal followed.
Normally, a public agency must respond to an open records request within three business days. KRS 61.880(1). In response to the public health emergency caused by the novel coronavirus, however, the General Assembly modified that requirement when it enacted Senate Bill 150 ("SB 150"), which became law on March 30, 2020. SB 150 provides, notwithstanding the provisions of the Act, that "a public agency shall respond to the request to inspect or receive copies of public records within 10 days of its receipt." SB 150 § 1(8)(a). The Department violated the Act by failing to respond to Appellant's request within ten days.
The Department acknowledges that its response was untimely. However, it now claims it has provided the Appellant all responsive records located by its Strategic Planning Unit. 1The Appellant disagrees, and claims additional records exist but that they have not been provided.
When a public agency claims that it has provided all responsive records, this Office has historically declined to make a finding that additional records should exist. That is because this Office "is a reviewer of the course of action taken by a public agency and not a finder of documents." OAG 86-35. Moreover, once a public agency states affirmatively that it does not possess any responsive records, the burden shifts to the requester to present a prima facie case that the requested records do exist.
Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). If the requester establishes a prima facie case that records do or should exist, "then the agency may also be called upon to prove that its search was adequate."
City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling , 172 S.W.3d at 341). Therefore, to support a claim that additional documents exist, the Appellant must produce some evidence that calls into doubt the adequacy of the agency's search. See, e.g. , 95-ORD-96. The Appellant has made such a showing here.
On appeal, the Appellant provides a copy of a record it has obtained from a different source that appears to have been created by the Department and that is responsive to the request. Yet the Department did not provide the Appellant with a copy of this record. 2The Appellant also cites references in various documents that appear to require the Department to generate additional records, but the Department has not provided such records. The Department, however, asserts that if any additional records did exist in its possession, "they no longer do." 3The Department explains that the commander of the Strategic Planning unit searched that unit's work area, "including file cabinets, boxes, and desks," and all electronic files it possesses using the keywords "21st," "21st Century," and "21st Century Policing." The Department located no records other than those it provided to the Appellant.
The Department has searched all of its records within the Strategic Planning Unit - the division responsible for implementing the 21st Century Policing policy. In doing so, the Department has conducted a reasonable search, in good faith, for responsive records. The Act "requires nothing more." 06-ORD-42.
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.
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