Question of the day: What can I do if I have proof that the agency has, or should have, more records than it admits and has released to me?
A reporter recently asked about a discrepancy between the number of records a public official told her exist ("thousands") and the handful of records released to her in response to her request for records relating to particular public business stored on the official's public and private cellphone.
https://www.lex18.com/news/lex-18-investigates/lex-18-investigates-a-cl…
The agency argued that the records maintained on the officials' cellphone were not in the agency's possession and therefore not open records — a specious claim that has been repudiated in earlier posts — and that is particularly unconvincing here since the records were in the possession of the agency to which the open records request was directed because it was the recipient of the record that originated on the official's cellphone(s).
Nevertheless, the agency waived the specious "possession" argument, conducted a search, and insisted it located only a few responsive records.
The reporter was understandably frustrated and asked what she could do.
We responded:
"Assuming the agency is being truthful, there's a real disconnect between what the official told you about thousands of messages and what the agency was able to produce (after waiving their objections).
"In Eplion v Burchett the Kentucky Court of Appeals affirmed the Attorney General's position that where there is evidence that a record exists or once existed — for example, where a statute requires an agency to create and maintain a record or where the same agency record has been obtained from another source — but the agency cannot produce the record, the requester is entitled to an explanation from the agency for its inability to produce the record (here, arguably, to explain the discrepancy between what the official said about the large number of records and what the agency produced).
"The Court of Appeals said:
"'The OAG has held, and we agree, that when it is determined that an agency's records do not exist, the person requesting those records 'is entitled to a written explanation for their nonexistence.' Ky. Op. Atty. Gen. 10-ORD-078, 2010 WL 1538882 (Ky.A.G.), p. 2."
https://casetext.com/case/eplion-v-burchett-1
"Unless the official is inclined toward exaggeration, her statement that 'thousands' of records exist, coupled with the agency's inability to produce them, should trigger the agency's duty to explain their nonexistence in writing."
"Eplion v. Burchett is authority for the proposition that the reporter is entitled to a written explanation for this discrepancy."
Here's an example. State law requires an appraisal before a county purchases property whose value exceeds a specified amount. The county is unable to fulfill a request for the appraisal. It must issue a written explanation for the appraisal's nonexistence. Possible explanations? The retention period for the appraisal expired and it was destroyed in the normal course of business. An admission from the county that it was unaware of this statutory duty and violated the law.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2012/12ORD171…
NOTE: Eplion does not require an agency to provide a written explanation every time it cannot produce records that satisfy a request. Speculation or an unsubstantiated belief that additional records exist is not sufficient to trigger the agency's duty to provide a written explanation "for their nonexistence." Absent proof of the missing record's existence, the agency is not required to "prove a negative."
https://casetext.com/case/bowling-v-lexington-fayette-urban-cty-gov
