Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police violated the Open Records Act in responding to two requests for records relating to laboratory results pertaining to the inmate requester. For the reasons stated below, we find no violation of the Act.
Inmate Eric T. Lyvers (Appellant) initiated this Open Records Appeal by letter dated April 27, 2017, challenging the partial denials by the Kentucky State Police ("KSP") of two requests, both dated February 27, 2018, for records relating to laboratory results from testing performed at the Kentucky State Police Forensic Laboratory, Western Branch. These requests are the latest of several that Appellant has made regarding these same laboratory results. 1
In one request, February 27, 2018, Appellant's request described nine categories of records. 2 KSP designated this set of requests as # 18-0441, and provided responsive records to requests B, C, and D, but advised Appellant that it had conducted a search of its records and had found no records responsive to requests A, E, F, G, H, and I. Appellant's other request asked for five records very similar to the other requests of the same date. 3 KSP designated this request as # 18-0442, and provided records responsive to request A, but advised Appellant that it had conducted a search of its records and had found no records responsive to requests B, C, D, or E. In both instances, KSP cited a line of open records decisions asserting that a public agency cannot honor a request for nonexistent records or provide that which it does not have.
In response to this appeal, KSP Staff Attorney Cody Weber reiterated the agency's original position that it had provided the responsive records to both requests that it possessed, but did not possess any additional records. Specifically, Mr. Weber explained that Appellant is currently involved in civil litigation with Kentucky State Trooper James Newkirk in federal court (United States District Court for the Western District of Kentucky, Bowling Green, Civil Action No. 15-cv-96) in which Appellant has made requests for production of documents similar to the requests designated as 18-0441 and 18-0442. Mr. Weber attached a response from Kentucky State Police Laboratory Systems Director, Laura Sudkamp, to a subpoena requesting production of records in the civil case. Ms. Sudkamp's responses to nearly identical requests for the production of documents attested that there are no documents in existence showing when and/if any individual logged onto the website to access and/or view the results of a laboratory test. Mr. Weber's letter stated that a search of the KSP records resulted in no records beyond those already provided. 4
Appellant referenced a document with the notation of "12/24/14 at 3:21 :39 pm," that he asserts as proof of documents responsive to his request being in KSP's possession. The document referenced by Appellant was provided in Mr. Weber's response letter, and was previously provided in response to the Appellant's open records requests and in discovery in the aforementioned pending civil case. Mr. Weber explained that the document was produced by Defendant Trooper James Newkirk in discovery in response to a request for production of documents seeking "[d]ocument showing the date that the results and conclusions of the examination of the evidence (capsule and spoon) was posted on the Kentucky State Police Web-site (Secured Portal)." Mr. Weber explained that this document merely shows when the results were posted to the website, but does not notify any individual via a message, alert, etc. that the results were posted to the website. Appellant's request, in 18-0442 (B), (C), and (E), seeks documentation "notifying" individuals. As attested by Ms. Sudkamp in her response to a subpoena for records, there are no records in existence "notifying" any individual regarding the lab results.
The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought 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. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban Cnty. Gov't., 172 S.W.3d 333, 341 (Ky. 2005)("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"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed) ; 07-ORD-188; 16-ORD-134; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); Cabinet for Health and Family Servs. v. Todd Cnty. Std., 488 S.W.3d 1 (Ky. App. 2016) (affirming opinion and order enforcing 11-ORD-074); 12-ORD-195. 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, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231.
A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search (and explaining why, if appropriate). 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. Appellant "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses such records as [he] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. In the absence of the requisite prima facie showing, or any facts or evidence to support Appellant's claim, this office must affirm the agency's denial of his requests per Bowling , and prior decisions of this office including those referenced above. See 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist").
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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