Monday, September 14, 2009

AG reiterates: Public officials are not required to create records that do not exist

The Kentucky attorney general's office released eight decisions today on open-records and open-meetings issues. Several dealt with requests for records that officials said did not exist; decisions reaffirmed past decisions saying records don't have to be created to fulfill a request. A brief summary of the six most significant decisions follows. Full text can be found via Links of Interest at the bottom of the KOG Blog.

Although Trigg County Emergency Services mischaracterized 911 tape and dispatch log entries relating to triple homicide as Kentucky State Police records, because they were requested and utilized by KSP in its investigation of the crime, it ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at KSP's request.

McCreary County sheriff violated the Open Records Act by failing to respond in writing to a request and failing without explanation to provide any records about wrecker service in response to some portions of the request.

Neither the McCreary County judge-executive nor the McCreary County 911 Emergency Dispatch Center is required to produce nonexistent records about wrecker service or "prove a negative" in order to refute a claim that a certain records exist under the rule, nor must either agency create a record or compile a list in order to honor the subject requests; however, the response provided on behalf of the agencies violated the Act insofar as the judge-executive failed to affirmatively indicate whether additional responsive documents exist.

Office of the Governor did not violate the Open Records Act when it did not possess records responsive to the request and provided what it did possess. Any funds received for copies in excess of 10 cents per page should have been returned.

Cabinet for Health and Family Services properly withheld records relating to a child fatality pursuant to KRS 61.878(1)(l), incorporating confidentiality statutes KRS 194A.060 and KRS 620.050.

Pulaski County judge-executive is not expected to produce nonexistent reprimands nor must he "prove a negative" in order to refute a claim that such records exist in a specific personnel file; however, he violated KRS 61.880(1) in failing to affirmatively indicate whether any responsive complaints or commendations exist and in failing to cite the statutory exception relied upon as the basis for denying access to the requested job performance evaluation. The evaluation was properly withheld on the basis of KRS 61.878(1)(a), given the absence of any specific facts to justify disclosure.

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