Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Kentucky State Police ("KSP") violated the Open Records Act in the disposition of Brenton Wombles' June 30, 2009, 1 request for a copy of a complaint and investigation file concerning a prison employee. For the reasons that follow, we find that the KSP did not substantively violate the Act.
In his request addressed to KSP headquarters in Frankfort, Kentucky, Mr. Wombles stated the following:
Hello, I am writing seeking Records that pertain to the Former Kentucky State Reformatory employee, Sergeant Robert Fanning or just Sergeant Fanning. In the summer or winter of the Year 2008. Brandon Wombles (my Brother) filed a complaint against Sergeant Robert Fanning/ Sergeant Fanning for excessive Force claim. I am requesting that I get a copy of the complaint that was filed by Brandon Wombles and also a copy of the investigation report, witness statements and the conclusion of the investigation. This investigation was conducted by a Lt. White from the LaGrange, Kentucky post.
On July 13, 2009, KSP Records Custodian Shiann N. Sharpe responded in pertinent part:
I have been informed by Detective Jason Brown that after his discussion with a representative of the Internal Affairs office at KSR and the County Attorney's office, the determination was made that no action was needed regarding this incident; therefore, there are no records in existence to provide to you in the possession of the Kentucky State Police.
Mr. Wombles initiated this appeal on July 15, 2009. He stated in part as follows:
I know per fact that there are records available including investigation reports and letters that had been written by a Lt. White from the LaGrange, Kentucky Post and mailed to Brandon Wombles. I also know that a criminal Complaint was filed with the Kentucky State Police so, I don't see how there is all of a sudden no records available from the Investigation. The Agency themselves even admitted that there was a Jason White who said that a Detective Jason Brown had discussed this with Internal Affairs of KSR and found out that no action was needed.
In the KSP's response to this appeal, submitted July 27, 2009, Legal Counsel Morgain M. Sprague states as follows:
As KSP informed Mr. Wombles in response to his request, the KSP does not possess any documents or audio recordings about this complaint. The KSP received a verbal complaint regarding mistreatment of Brandon Wombles and, after meeting with Reformatory personnel and the County Attorney, it was concluded that no action or investigation was necessary. The KSP reaffirms its statement that there are no records in its possession regarding this matter?
However, the KSP encourages Mr. Wombles to contact the Department of Corrections to determine if that agency has any records regarding this incident.
We find no substantive violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries. "[I]t is not, in general, within our statutory charge to resolve questions of fact or . . . otherwise [to] act as a trier of fact." 09-ORD-170, p. 4. In this case, since Mr. Wombles has produced no affirmative evidence, beyond mere assertions, that the KSP possesses such records as he has requested, we do not have a sufficient basis on which to dispute the KSP's representation that no such records exist. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we find that the KSP did not substantively violate the Open Records Act in its disposition of Mr. Wombles' request.
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 proceedings.
Brenton Wombles, # 217547Morgain M. Sprague, Esq.Shiann N. Sharpe
Footnotes
Footnotes
1 Although Mr. Wombles' request bears the date June 30, 2009, the record does not reflect when the KSP received it. Accordingly, we cannot determine whether the KSP's response was timely.
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