Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of David W. Koher for copies of any records in the possession of the KSP concerning a report of abuse identifying Mr. Koher as the alleged perpetrator that was filed on or around June 12, 2002, in Perry County, Kentucky. Having conducted a thorough search of existing records, the KSP fully complied with the Open Records Act by issuing a timely written response advising Mr. Koher that no responsive records were found.
By letter directed to the KSP Official Custodian of Records on January 3, 2006, Mr. Koher requested a copy of "a police report concerning myself dated on or about June 12, 2002," as well as "copies of any other related documents concerning this report" to which he is entitled. On January 9, 2006, Mary Ann Scott, Official Custodian of Records, responded on behalf of the KSP, denying Mr. Koher's request on the basis of KRS 61.872(6). In conclusion, Ms. Scott advised Mr. Koher to frame his request "with more particularity and specificity, including the type of records" being sought "(accident report, criminal investigation, fire investigation, etc.) and the location where the incident occurred," so the KSP could honor his request.
On January 11, 2006, Mr. Koher supplemented his initial request, including the name of the alleged victim, the nature of the offense (physical abuse), the address at which the incident allegedly occurred on the specified date, the telephone number associated with the address at the time, and the names of individuals who were present when the report was filed. According to Mr. Koher, the information requested concerns a criminal investigation "or at least he think[s] it" does; "some family members" contacted the KSP "but no charges were ever brought." In a timely written response, Ms. Scott advised Mr. Koher that a "thorough search of [KSP] records has been conducted and no records regarding the above referenced incident have been found." Accordingly, Ms. Scott recommended that Mr. Koher "contact any local law enforcement agency to determine if they may have records regarding the incident." Citing decisions dating back to 1983, Ms. Scott correctly observes this office "has repeatedly held that a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have."
By letter dated January 23, 2006, Mr. Koher initiated this appeal, attaching "irrefutable evidence" (a Motion for Specific Discovery filed by Mr. Koher, pro se, and the Commonwealth's Response to Motion for Specific Discovery) 1 related to Indictment Number 02-CR-00166, Perry Circuit Court, establishing that records of the type requested do exist. In Mr. Koher's view, the intent of the Open Records Act is being subverted by the KSP "by way of misdirection of the applicant." Upon receiving notification of Mr. Koher's appeal from this office, Sgt. L. Scott Miller, Commissioner's Office, responded on behalf of the KSP. "Upon good faith inquiry," the KSP has "been unable to identify any records which satisfy this request."
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.
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. 2 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. 3
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. Koher that no responsive records were found, and explaining that any responsive records would be in the custody of local agencies. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. 4
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 A review of the attached documentation supports the position of the KSP insofar as much of the evidence "concerned a totally different incident and child."
2 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.
3 [ILLEGIBLE FOOTNOTE]
4 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. " If the KSP is aware of which local law enforcement agency would be most likely to have custody of such records, the KSP should immediately furnish Mr. Koher with the name and location of the official custodian of the agency in compliance with this provision. See 94-ORD-140.