Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in denying Wm. Kirk Hoskins' May 14, 2019, request for "all records of every type and character (inclusive of audio recordings) that relate to a report(s) of domestic violence concerning Scott and Dianna Castillo who reside at 437 Willowbrook Drive, Fisherville, KY 40023." Mr. Hoskins noted: "I believe an emergency call was received by the KSP dispatcher who contacted local authorities (either the Spencer County Sheriff or the Taylorsville Police) who in turn dispatched an officer to the Castillo residence." It was Mr. Hoskins' "understanding that Scott Castillo was asked to leave the premises and did so." He did not know the exact date of this incident but he believed "it was in the somewhat recent past." By letter dated May 20, 2019, Stephanie Dawson, Official Custodian of Records, denied Mr. Hoskins' request pursuant to KRS 61.872(3)(b), citing his failure to "precisely describe" the records in dispute. She referenced 99-ORD-14 and 13-ORD-077 in support of KSP's position that he did not describe the materials with adequate specificity to enable it to identify and locate "all records."
On appeal, Mr. Hoskins explained that he learned of the domestic violence incident during a court proceeding held on or around April 18, 2019, and his understanding was that the "domestic dispute resulted in a 911 call." Upon further inquiry, he learned that an emergency call "would be routed to a [KSP] operator who would in turn dispatch to an appropriate local law enforcement official." For the first time, he clarified his understanding that the incident occurred "perhaps within 60 days" of the April 18, 2019, hearing. He further challenged the agency's reliance on KRS 61.872(3)(b), citing Commonwealth. v. Chestnut, 250 S.W.3d 655 (Ky. 2008) and emphasizing the correct standard is found at KRS 61.872(2) given that he is willing to conduct onsite inspection of any existing record, including the audio recording, if any. Lastly, he asserted the identity of the caller and her address, coupled with the approximate time period, was adequate information to enable KSP to conduct a search. Because KSP ultimately determined that no responsive audio recording exists, and notified Mr. Hoskins of that fact in writing, further discussion of KRS 61.872(3)(b) is unwarranted.
Upon receiving notification of Mr. Hoskins' appeal, Staff Attorney Cody Weber supplemented KSP's response. Mr. Weber explained that upon being provided with a potential time period, Ms. Dawson contacted the KSP Post 12 Radio Room Supervisor, Robert Brock, in attempting to identify and locate any responsive audio recording (s); she contacted Mr. Brock because the alleged incident occurred in Spencer County, which is within Post 12's jurisdiction. He did not locate any recordings within the time period that Mr. Hoskins identified. Accordingly, Mr. Weber maintained that KSP does not possess any responsive audio recording and therefore denied Mr. Hoskins' request based upon its nonexistence.
Our scope of review in resolving the present dispute is defined at KRS 61.880(2), pursuant to which, the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186; 12-ORD-065. 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." 09-ORD-120, p. 4; 17-ORD-223. 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's Office "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; 17-ORD-223; 18-ORD-221.
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 Cty. 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; 12-ORD-037; 12-ORD-065; 15-ORD-059; 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 Cty. Std., 488 S.W.3d 1 (Ky. App. 2016); 12-ORD-195.
However, a public agency such as KSP violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, 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. The record on appeal shows that upon receiving an approximate time frame during which a responsive audio recording would have been created, KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested;" 1 thus, KSP cannot be said to have violated the Act in denying a request for a nonexistent record. 05-ORD-109, p. 3; 10-ORD-117.
Mr. Hoskins "has produced no affirmative evidence, beyond mere assertions, that [KSP] possesses [the recording he] requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such record[exists]." 09-ORD-214, pp. 3-4; 17-ORD-223. In the absence of the requisite prima facie showing, or any facts or evidence to support Mr. Hoskins' belief that a responsive 911 recording exists, the Attorney General affirms the agency's denial of his request per Bowling , and prior decisions of this office. 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"); 16-ORD-172; 18-ORD-126.
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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