Opinion
Opinion By: Daniel Cameron,Attorney General;Matthew Ray,Assistant Attorney General
Open Records Decision
John Yarbrough ("Appellant") asked the Department for copies of eight different categories of records related to COVID-19. In a timely response, the Department provided him with some responsive records but denied his other requests for varied reasons. Specific to this appeal are the Department's denials of his requests for the polymerase chain reaction ("PCR") amplification rates for the COVID-19 tests used to generate the data that the Department collects and publicly reports, as well as his request for details concerning the death of a specific infant and the extent to which COVID-19 was related to the death.
First, the Appellant seeks review of the denial of his request for the PCR amplification rates used in the COVID-19 tests that are reported to the Department. In response, the Department claimed it "do[es] not have a record which would show a 'PCR Amplification Rate'" of the tests used in compiling its data. As for his second request, the Appellant had previously obtained the Department's data related to COVID-19 deaths, categorized by age, which reflected the death of one person between the ages of 0 and 20, allegedly an infant. Therefore, the Appellant sought "the record that would show that this infant died from COVID not merely, [ sic ] with COVID." (emphasis original). In response, the Department stated that it never classified an infant as having died "from" COVID-19, but that it had merely reported "that an infant died related to" COVID-19 or that the infant had died with COVID-19 "being present." As for any records that might provide details related to the infant's vaccination history or other records relating to the infant's cause of death, the Department stated that it was "not privy" to those records, indicating that such records do not exist in its possession.
A public agency cannot grant a requester access to a record that does not exist.
Bowling v. Lexington Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). Once a public agency states affirmatively that it does not possess responsive records, the burden shifts to the requester to present a prima facie case that the requested records do exist in the agency's possession. Id. at 341. If the requester can make 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 Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling , 172 S.W.3d at 341).
Because the Department affirmatively stated that it did not "have a record which would show a 'PCR Amplification Rate'" the burden shifts to the Appellant to make a prima facie case. To make his prima facie case, the Appellant recites a series of current COVID-19 related controversies he believes are affecting the nation. Specifically, the Appellant asserts that "[s]ince the PCR is the gold standard for testing [COVID-19], most of [the Department]'s 4,500+ COVID-19 'cases' are likely positive PCR tests." The Appellant also claims that "each PCR test uses a specific 'amplification'[.]" Although he presents policy suggestions for why the Department may want to consider collecting this information, the Appellant cites no authority that requires the Department to maintain records reflecting the PCR amplification rates of the tests it collects and complies. And the Appellant provides no evidence that the Department should possess records demonstrating that COVID-19 was the cause of an infant's death, as the Department agrees with the Appellant that the infant's death was not caused by COVID-19. On this record, this Office cannot find that the Appellant has made a prima facie case that the Department should possess the records he seeks, or that such records ever existed. Therefore, the Department did not violate the Act when it denied the Appellant's requests for records that do not exist in the Department's possession. 1
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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