Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Carroll County Sheriff's Office ("Sheriff's Office") violated the Open Records Act in not responding in writing to two open records requests, in not referring the requester to the proper custodian of records, and in the production of records. We find that the Sheriff's Office ultimately complied with the Open Records Act on appeal in identifying the proper custodian of records. The Sheriff's Office violated the Open Records in not responding in writing to two open records requests. The Attorney General is unable to resolve factual disputes about the existence and production of records in the context of an open records appeal.
Background
Helena Ball submitted an open records request to the Sheriff's Office on Nov. 3, 2015. Ball requested:
copies of all investigative documents, police reports, witness statements, names and information of witnesses and suspects contemplated as well as interviewed, suspect statements, identifying information of suspect, victim identification information, investigative notes, names of investigative officers and current status with their department, chain of evidence information/status of such evidence, evidence lists, memoranda, and any other documents/information on all matters concerning Nikki Davidson.
The Sheriff's Office did not respond in writing to that request. 1 Jessica Hughes submitted a request that was substantively identical to Ball's request on Jan. 6, 2016. Hughes stated that "this is a follow-up request for release of the following records, as a previous request was made on November 3, 2015," and additionally requested "a copy of the 911 call, a copy of the Louisville Medical Examiner's autopsy report(s), and any reports made by the Carrollton Coroner David Wilhoite." The Sheriff's Office did not respond in writing to that request either. 2
Ball and Hughes, along with Roy Davidson and Danielle Best (together, "appellants"), initiated this appeal on Feb. 2, 2016. The appellants described several interactions with the Sheriff's Office over the months since the initial request, raised questions about the investigation, and argued that:
We have not had access to Nikki's police investigation file nor the coroner's investigation including his reports, pictures, and notes. . . . We are currently awaiting a response to our requests for access to Nikki's file and/or notification that the case is closed, so we can retrieve a copy of the case file.
The Sheriff's Office, through the Carroll County Attorney, responded to the appeal on Feb. 12, 2016. The Carroll County Attorney described several conversations between Sheriff Kinman and various requesters over the course of several months after the initial request. On Feb. 4, 2016, various requesters visited the Sheriff's Office with their lawyer, Barbara Bonar, and requested to see the investigatory file. Ms. Bonar then contacted the Carroll County Attorney, who advised her to send her request in writing, which she did on Feb. 5, 2016. Ball again visited the Sheriff's Office on Feb. 9, 2016. The Carroll County Attorney stated regarding that meeting:
During that meeting, and unbeknownst to myself, Sheriff Kinman turned over the file to Ms. Ball, Ms. Davidson's mother. Thereafter, I conversed with Ms. Bonar by e-mail and indicated that it was my understanding that the file was produced to her client and the issue should be resolved. Ms. Bonar replied and indicated that she did not believe her client received the "entire file."
. . . The issue I believe lies in the fact that some of the items do not exist and therefore cannot be produced. The other issue is that many of the items sought are not in the custody of the Sheriff but are in the custody of other public agencies. Lastly, upon conversing with Sheriff Kinman, he indicated that he told Ms. Ball that he had not issued his final report in the investigation. He intends to have that information to her by next Tuesday. As such, the investigation is technically still open until the final report is issued. Accordingly, the Open Records Requests are not even appropriate until the investigation is concluded and closed by the Sheriff's Office. Upon the issuance of the final report, the investigation will be officially closed and all records will be open at that time. 3
The Carroll County Attorney attached a letter from Barbara Bonar to Sheriff Kinman dated Feb. 4, 2016, in which she listed four documents received, and fifteen other documents which she claims have not been produced. 4 The Carroll County Attorney also attached a letter dated Feb. 12, 2016, in which he responded to the documents which Bonar claims were not produced. 5
On Feb. 12, 2016, Ball and Hughes sent three faxes with additional information that they wished to be considered, including some of the documents referenced, and a copy of a request for evidence examination for a gunshot residue kit by Sheriff Kinsman to the Kentucky State Police dated Nov. 16, 2015. 6 The faxes additionally contained a memorandum from Ball and Hughes alleging improprieties in the investigation, and a request for the Attorney General to "assign a Special Investigator to review the Carroll County Sheriff's investigation into Nikki's death." On Apr. 13, 2016, Ball replied to the Carroll County Attorney's response to the appeal. 7 Ball disputed some of the details of the Carroll County Attorney's account of the conversations between the various parties. 8 Ball also argued:
Mr. Marsh never indicates which specific records do not exist or are with a specific agency in this letter. Moreover, Mr. Marsh indicates that the Sheriff would send the complete investigative report by the following Tuesday April [sic] 16, 2016. I still have yet to receive this investigative report.
Ball additionally responded to the fifteen specific requests responded to by the Carroll County Attorney, disputing receipt of some of the records, 9 and alleging further discrepancies in the investigation.
Analysis
KRS 61.880(1) provides that "each public agency, upon any request for records . . ., shall determine within three (3) days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." Verbal responses are not sufficient. In failing to respond to either Ball's or Hughes' requests for records in writing, the Sheriff's Office violated the Open Records Act.
KRS 61.872(4) provides that "if the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." The Sheriff's Office stated that "many of the items sought are not in the custody of the Sheriff but are in the custody of other public agencies. " Ball argues that the Carroll County Attorney "never indicates which specific records do not exist or are with a specific agency." However, in response to the request for the 911 call, the Carroll County Attorney stated that, "you need to inquire of the Carrollton Police Department . . . to acquire any records as they relate to 911." Ball subsequently admits that "we received the 911 call from the Carrollton Police Department." In identifying the proper custodian of the record requested, if only on appeal, the Sheriff's Office ultimately complied with KRS 61.872(4).
The Sheriff's Office states that "some of the items do not exist and therefore cannot be produced." "A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. The parties continue to dispute over which records exist, and which have been produced. In 12-ORD-065, we generally discussed the role of this office in the context of deciding open records appeals:
In the "final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact. " . . . Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." Moreover, when some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided."
Id. (citations omitted). The Attorney General is not vested with statutory authority in the context of open records appeals to conduct investigations and serve as a trier of fact, and resolve questions over whether records exist or have been produced. KRS 61.880(2)(a) provides only that "the Attorney General shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884 ." Our role in an open records appeal is simply to review the request and denial and state whether a violation of the Open Records Act occurred. The record before us does not enable us to resolve the factual disputes over which records exist or have been produced, and therefore we are unable to determine whether the Sheriff's Office ultimately properly complied with the requests. We encourage both parties to continue to work together to resolve these issues.
The appellants provide additional factual allegations, and request that the Attorney General "assign a Special Investigator to review the Carroll County Sheriff's investigation into Nikki's death." Such issues are outside the scope of an open records appeal, and should be directed to the Attorney General's Department for Special Prosecutions.
In summary, the Sheriff's Office violated the Open Records Act in not responding in writing to two open records requests. The Sheriff's Office ultimately complied on appeal with the Open Records Act's requirement to notify the requester of the proper custodian of documents. The Attorney General is unable to resolve factual disputes over the existence and production of records in the context of an open records appeal.
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.
Footnotes
Footnotes
1 Appellants state that Hughes and Davidson met with Sheriff Kinman concerning the request, and that Sheriff Kinman "agreed to honor the written request for records when Nikki's investigation was closed."
2 Appellants state that they made several phone calls to the Sheriff's office concerning the request.
3 The Sheriff's Office does not appear to be asserting either law enforcement exemption, KRS 61.878(1)(h) or KRS 17.150(2), so we do not address this issue.
4 Bonar stated:
Thus, the only documents you have produced at this time are:
1. Death Certificate
2. Louisville Medical Examiner's Report (without pictures). Please note that page 1 is missing.
3. Toxicology Report
4. Cover Sheet to Request for Evidence Examination.
The following information was requested in the Open Records Request and has still not been produced:
1. Page 1 of the Louisville Medical Examiner's Report
2. Pictures related to the Louisville Medical Examiner's Report
3. Sheriff Jamie Kinman's Police Report from responding to the scene on October 30, 2015.
4. Karri Poole's statement
5. 911 call
6. Chain of evidence report (KSP-41)
7. E-NJBRS Report
8. Uniform Citation Report
9. Witness reports or statements
10. Any and all pictures, recordings of the scene
11. Any and all pictures, recordings of the autopsy
12. List of any and all evidence taken from the scene
13. List of any and all evidence that has been destroyed
14. List of any and all evidence not produced, and the reason it has not been produced
15. Coroner's Report and accompanying documents, photos, or evidence.
5 The Carroll County Attorney replied to Bonar's requests:
1.) Your client obtained same on February 9, 2016, from Sheriff Kinman.
2.) I have attached the photographs related to the Louisville Medical Examiner's Report hereto on CD.
3.) No police report was prepared by Sheriff Kinman when he responded to the scene on October 30, 2015. As such, no record currently exists. Sheriff Kinman intends to prepare a case report to close out this investigation and agreed to deliver same to your client by Tuesday, February 16, 2016, once it is prepared.
4.) Kerri Poole's statement was delivered to your client on February 9, 2016 by Sheriff Kinman.
5.) 911 Call--Sheriff Kinman, nor Carroll County is the records custodian for the Carroll County 911 Dispatch Center. You need to inquire of the Carrollton Police Department at 750 Clay Street, Carrolton, Kentucky 41008, (502) 732-6621, to acquire any records as they relate to 911.
6.) The Chain of Evidence Report (KSP 41) was delivered to your client on February 9, 2016 by Sheriff Kinman.
7.) An E-NIBRS report has not yet been prepared so no record exists that may be produced. However, the case report will be delivered to your client once prepared.
8.) No Uniform Citation Report was prepared so there is no record to be produced.
9.) There are no other witness statements to be produced at this time. The Sheriff's final case report may contain summaries of verbal interviews but I am not certain until such time as the final report is prepared.
10.) Sheriff Kinman delivered his photographs that he took to your client on February 9, 2016.
11.) I have attached the Medical Examiner's photographs hereto as stated in response number 2.
12.) Sheriff Kinman delivered the following to your client on February 9, 2016: spent shell, remaining bullet, Ms. Davidson's cell phone and charger, pictures of text messages, and the gun. There is no other evidence gathered from the scene which remains in Sheriff Kinman's custody.
13.) No evidence has been destroyed.
14.) I have produced all evidence you have requested and there is not any further evidence to be produced.
15.) As for any requests of the Coroner, please forward me those requests and I will address them accordingly.
6 The record before us is unclear as to whether any gunshot residue test was actually performed, and whether any reports from that test exist.
7 This office had extended the appeal for an additional thirty days due to an unmanageable increase in the number of appeals received under KRS 61.880(2)(b)(3).
8 Ball also attached an email from Bonar to the Carroll County Attorney, in which she also disputed the Carroll County Attorney's account of the conversations between the various parties. The email did not dispute the Carroll County Attorney's response to the records requests.
9 Ball stated:
1) I have not obtained the complete investigative file. I am still waiting on additional documents requested including the investigative report.2) Ms. Bonar did not receive the photos taken by the Louisville Medical Examiner at the Louisville Medical Examiner's office. She received the 19 photos taken by Sheriff Kinman at the scent which I obtained on my visit on February 9, 2016.3) We still have not received the police report as of April 13, 2016.4) Kerri Poole's statement was received . . . .5) We received the 911 call from the Carrollton Police Department on April 11, 2016.6) We did not receive the KSP 41 Chain of Evidence form on February 9, 2016. Rather, we received the KSP 26 Form.7) We have not received the ENIBRIS report as of April 13, 2016.8) Not applicable.9) I have not received any indication that witnesses were interviewed on or around the date of October 30, 2016. . . .10) We received 19 photographs on February 9, 2016. . . .11) Again, Barbara received only the photographs taken of the scene of Nikki's death, and she did not receive the medical examiner's photographs.12) I did receive these items from your client on February 9, 2016.. . .15)As to the requests for the coroner, I would like to obtain the photographs taken of Nikki's body by Wilhoight, any photographs taken by the Louisville Medical Examiner and sent to Wilhoight and Wilhoight's written report.