Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Russell Police Department violated the Kentucky Open Records Act in failing to respond upon receipt of Wayne C. Murphy's January 24, 2010, requests for a copy of its "Policy and Procedures for 'Out-Of-State Arrests' [sic]," and the "' Investigative Time Sheets'" of Detectives Tim Wilson and Roy Ison as well as their "' Investigative Work Product '" relating to his case, respectively. Having received "no response whatsoever," 1 Mr. Murphy initiated this appeal by letter dated February 19, 2010. Upon receiving notification of Mr. Murphy's appeal from this office, Russell City Attorney James E. Armstrong responded to Mr. Murphy in separate letters 2 dated February 25, 2010, advising that his former request "is similar or identical [to] a previous request," which the RPD answered on January 14, 2010, and the RPD "does not have a policy and procedures for out-of-state arrests. " 3 Referring implicitly to 09-ORD-199, Mr. Armstrong indicated that Mr. Murphy's other written request "is far too vague" 4 for the RPD to comply, and the issue has already been addressed in a prior decision by this office, but the RPD "has turned over its entire file" to his "prior counsel and to the Innocence Project." However, the RPD "will attempt to comply" if Mr. Murphy provides a more specific request. As in the recent decision involving Mr. Murphy and the RPD, this office affirms the disposition of Mr. Murphy's request for nonexistent records, but again finds that disclosure of his file, which apparently would contain some or all of the other potentially responsive documents, to his prior counsel, the Innocence Project, or any other party does not relieve the agency of its obligation to provide him with a copy upon receipt of the copying fee and postage costs. See KRS 61.874(1).
In responding to Mr. Murphy's appeal, the RPD asserted that no documents exist which are responsive to his request for the specified "Policy and Procedures." As Mr. Armstrong explained, the "City of Russell, Kentucky is located in the State of Kentucky and the City of Russell Police Department does not have a policy and procedures for out-of-state arrests. " The RPD now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Murphy's claim that responsive documents exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 5 Mr. Murphy has not made such a showing here.
As in 09-ORD-199, this office must affirm the agency's ultimate disposition of Mr. Murphy's request as to nonexistent records because to hold otherwise would result in the RPD "essentially having to prove a negative" in order to refute his claim that such records exist. A copy of 09-ORD-199 is attached hereto and incorporated by reference (see pp. 4-7 for the relevant analysis). Similarly, pp. 3-4 of that decision are controlling on the remaining question presented. In sum, "the fact that other parties may have been provided with a copy of Mr. Murphy's file, including any existing records that would [otherwise] satisfy his request, and that Mr. Murphy obtained a copy of his file from a source other than the RPD, does not relieve the RPD of its duty to provide him with a copy of any of those records also in the possession of the agency." 09-ORD-199, pp. 3-4, citing 00-ORD-16, p. 4. On at least several different occasions, and most recently in 09-ORD-199, the Attorney General rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10; 00-ORD-16; 04-ORD-059; 06-ORD-131. This office therefore reaches the same result here. Upon receiving "advance payment of the prescribed fee, including postage, " the RPD must provide Mr. Murphy with a copy of any existing records which are responsive to his request for the specified time sheets and investigative materials per KRS 61.874(1), unless the RPD properly invokes a statutory basis for withholding some or all of the records, in which case it must specify which records are being withheld.
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.
Wayne C. Murphy, # 207062Tim WilsonJames E. Armstrong
Footnotes
Footnotes
1 In failing to issue a written response within three business days, the RPD unquestionably violated the mandatory terms of KRS 61.880(1). The RPD offered no explanation for its failure to respond in addressing Mr. Murphy's appeal. As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
2 Mr. Armstrong's response to Mr. Murphy's appeal consisted of a copy of each letter.
3 Neither the record on appeal nor the record in 09-ORD-199 contains a copy of the January 14, 2010, request; accordingly, this office makes no finding as to whether the first of Mr. Murphy's January 24 requests was duplicative.
4 Mr. Murphy explained that he wished to see any time sheets for the specified officers "that would show exactly the amount of time that the Investigators spent towards trying to develop some (alleged) facts in the Superstar Video Store Robbery [sic]." Likewise, Mr. Murphy asked for "work product" that documents every "'Lead,' 'Tip,' and 'Action' that was taken and persued [sic] in to gaine [sic] information and develop facts in towards [sic] the crime." For example, Mr. Murphy asked for documents created when "Det. Wilson and or [sic] Det. Ison interviewed 'Rick Barber' and 'Chris Barber' and collected their statements."
In our estimation, these descriptions cannot properly be characterized as "vague. " However, the RPD has agreed "to attempt to comply" if Mr. Murphy will provide more specific information and this office has recognized that a request for clarification is not a denial; rather, Mr. Murphy must "precisely describe" any records he wishes to receive by mail per KRS 61.872(3). In any event, disclosure of his file to another party does not suffice.
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5 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
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