Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the City of Bowling Green Police Department in responding to Mr. Robert W. Ihlenfeldt's request for a copy of a videotaped statement made by Mr. Ihlenfeldt on September 24, 1987, shortly after his arrest. At the time of his request, Mr. Ihlenfeldt was an inmate at the Western Kentucky Correctional Complex serving a four year sentence for sexual abuse in the first degree. It is this conviction which Mr. Ihlenfeldt apparently seeks to challenge through disclosure of the disputed videotape. He has attempted to pursue this matter through numerous channels, but his most recent request was submitted to the Bowling Green Police Department.
On behalf of the Department, Chief Gary A. Raymer responded to Mr. Ihlenfeldt's request in a letter dated March 25, 1993. Chief Raymer advised Mr. Ihlenfeldt as follows:
[T]his department has provided you with all the information that it is aware of concerning any video tapes. The only tape we show in our records was the one that was destroyed in 1990.
Chief Raymer urged Mr. Ihlenfeldt to direct further inquiries to the Commonwealth's Attorney's Office.
In his letter of appeal to this Office, Mr. Ihlenfeldt makes wideranging allegations relative to this matter, as well as his arrest and subsequent conviction. With respect to the Open Records Law violations he alleges, it is his position that the Russellville and Bowling Green Police Departments have acted in concert to subvert the law by destroying public records, to wit, the disputed videotape. He notes:
[T]he Russellville Police Department has provided two distinctly different answers to my open records request. On one hand they claim they have no record of any videotape. Then in response to my civil action against Det. Embry they state that the tape was sent to Bowling Green, at the request of the Bowling Green Police Department. Clearly one of these responses is false and evasive.
Mr. Ihlenfeldt acknowledges that both his attorney, Mr. C. Robert Hedges, and an attorney attached to the Department of Public Advocacy, Mr. William H. Eddy, have been unsuccessful in their efforts to obtain a copy of the videotape. Both attorneys were advised that the tape was transferred from the Russellville Police Department to the Bowling Green Police Department where it was destroyed on January 30, 1990. Mr. Ihlenfeldt urges this Office not to "sweep[] this [matter] under the rug," but to intervene on his behalf.
In a conversation with the undersigned on August 25, 1993, Mr. Eugene Harmon, Bowling Green City Attorney, explained that the videotape was not used as evidence in Mr. Ihlenfeldt's trial, but was retained by the Department until January 1990, when it was destroyed pursuant to Departmental policies. Copies of those policies, as well as Mr. Harmon's letters to Mr. Ihlenfeldt explaining these policies are attached hereto. Clearly, the record requested by Mr. Ihlenfeldt is no longer in existence.
This Office has consistently recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. A request for such documents is moot. OAG 88-44. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. OAG 86-35. As we observed at page 5 of OAG 86-35, "This Office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." We believe that OAG 86-35 is dispositive of Mr. Ihlenfeldt's appeal.
When confronted with a request to inspect public records, an agency must address two questions: Whether it has the documents requested, and if it does, whether the documents are subject to public inspection. Under the facts presented, Chief Raymer advised Mr. Ihlenfeldt that the record he requested was destroyed in 1990. This was a proper response insofar as an agency cannot release that which it does not have.
The Open Records Law regulates access to public records, and not records management. Our decision must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the documents in its possession at the time of the request? OAG 83-111; OAG 87-54; OAG 88-5. Chief Raymer's response that the videotape was destroyed in 1990 was sufficient and proper under the Open Records Act.
Mr. Ihlenfeldt is apparently convinced that a wrong has been perpetrated against him. If, in fact, he has a legitimate cause of action against the authorities named in his appeal, he should contact a private attorney. We have little doubt that if the private bar concurs with him in his view that his allegations are actionable he will have little trouble locating an attorney to take his case. However, it is not for this Office, in its role as open records dispute mediator, to champion his cause relative to these perceived wrongs.
Mr. Ihlenfeldt may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.