Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Delbert K. Pruitt, Attorney at Law, violated the Kentucky Open Records Act in failing to respond upon receipt of Monty Turner's request for a copy of all records pertaining to "indictment no. 03-CR-00477-002 and/or District Court Case 03-F-922" in which Mr. Pruitt represented him at "a preliminary hearing in the McCracken Co. District Court." Because Mr. Pruitt does not possess any records that are responsive to Mr. Turner's request, Mr. Pruitt ultimately complied with the Open Records Act by affirmatively indicating as much to Mr. Turner in a written response, providing a credible explanation for the lack of records, and furnishing him with the name and location of the custodial agency in accordance with KRS 61.872(4).
By letter directed to this office on May 18, 2006, Mr. Turner initiated this appeal, contending that Mr. Pruitt exceeded the statutory "time limit and failed to respond. " Upon receiving notification of Mr. Turner's appeal from this office, Mr. Pruitt responded as follows:
I was given this case briefly, as conflict counsel for the Department of Public Advocacy. Amy Harwood, from the Paducah DPA office, did his preliminary hearing. I realized soon after getting the file that I had a conflict in representing Mr. Turner and returned the file to the DPA. From there, Raymond McGee, whose office is in Smithland, Livingston County, Kentucky, took the case. In the short time I had the case, I did not file any pleadings or create any paperwork. I mailed the file in its entirety to the DPA and therefore I have nothing to submit [in response] to an open records request.
Because Mr. Pruitt cannot produce for inspection or copying that which he does not have, nor is there evidence of record to refute his assertion, nothing more is required of Mr. Pruitt.
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 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. 1
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 Mr. Pruitt 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 Mr. Pruitt 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, Mr. Pruitt complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Turner that no responsive records were located, and providing a credible explanation as to why any such records would be in the custody of the DPA. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit 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.
Monty Turner, # 184946Little Sandy Correctional ComplexRt. # 5, Box 1000Sandy Hook, KY 41171
Delbert K. PruittAttorney at Law222 Kentucky AvenueP.O. Box 930Paducah, KY 42002-0930
Footnotes
Footnotes
1 To the extent Mr. Pruitt failed to respond within three business days, as mandated by KRS 61.880(1), his response was procedurally deficient.
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.