Request By:
Vincent Scott
Hopkins County Jail
2250 Laffoon Trail
Madisonville, KY 42431Mary R. Malone, Examiner
Jefferson Regional Forensic Laboratory
3600 Chamberlain Lane, Suite 410
Louisville, KY 40241Roger Wright
Kentucky State Police
Office of Legal Services
919 Versailles Road
Frankfort, KY 40601Sgt. L. Scott Miller
Kentucky State Police
Commissioner's Office
919 Versailles Road
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in failing to honor the request of Vincent Scott for the "chain of custody, ANY and ALL other documents, lab reports, or photos of evidence pertaining to Laboratory No. 05-2-03208, Case No. 2005-0775." Because the KSP do not possess any records which are responsive to Mr. Scott's request aside from those already provided, the KSP complied with the Open Records Act in affirmatively indicating as much in a written response, and offering a credible explanation as to why additional records would be in the custody of a different agency.
By request directed to Mary R. Malone, Examiner, Jefferson Regional Forensic Laboratory, on November 29, 2005, Mr. Scott sought to inspect the specified records and "anything" in her possession relating to his case; the KSP received the request on December 5, 2005. Noting that he was "NOT sent a chain of custody or any photos," nor did the KSP indicate whether such records exist, Mr. Scott initiated this appeal in a letter dated January 12, 2006. Upon receiving notification of Mr. Scott's appeal from this office, Sergeant L. Scott Miller, Commissioner's Office, responded on behalf of the KSP. According to Sgt. Miller, the KSP has provided Mr. Scott with copies of "all documents [it] is responsible for keeping in reference to the requested lab number 05-2-03208, and case no. 2005-0775, including a chain of custody for the evidence while it was in [the KSP's] possession." However, the KSP is "not the agency who initiated the investigation and therefore [does] not have a chain of custody for the evidence prior to [] receiving it and also do not have any photos." Because the Radcliff Police Department, located at "200 Freedom's Way in Radcliff, Kentucky 40160," initiated the investigation, that agency "may be able to provide Mr. Scott with the additional information that he is requesting." Having provided Mr. Scott with copies of all responsive records in its possession, the KSP argues it has fully complied with the Open Records Act. 1
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as the KSP obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205. 2
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist (or are in the custody of the agency) as the KSP ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. 3 To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate. 4
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist), of the requested records, and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because the KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, the KSP complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Scott that no further responsive records were found, and providing a credible explanation as to why any such records would be in the custody of the RPD with the exception of those provided. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. 5
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 With respect to those records already provided to Mr. Scott, any related issues are moot per 40 KAR 1:030, Section 6, which provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087.
2 It is unclear from the record whether the KSP so advised Mr. Scott in a timely written response as mandated by KRS 61.880(1). If not, the initial response of the KSP was procedurally deficient to this extent.
3 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.
4 [ILLEGIBLE FOOTNOTE]
5 Pursuant to KRS 61.872(4): "If the person to whom the application if directed does not have custody or control of the public record requested, that person shall notify the applicant and furnish the name and location of the official custodian of the agency's public records. " Here, the KSP has substantially complied with this provision on appeal, but must provide Mr. Scott with the name and contact information of the official custodian of records at the custodial agency, if known , in accordance with the express terms of KRS 61.872(4).