Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the actions of the Bowling Green Police Department and the Office of the Warren County Attorney relative to the open records requests of Donald Ray Violett. By separate letters, dated December 29, 1998, Mr. Violett made an open records request of each agency, requesting various theft reports, incident reports, criminal complaints, audiotaped statements, interview notes, etc., apparently related to criminal cases 92-ORD-0532 and 92-ORD-0626.
In his letter of appeal, dated January 19, 1999, Mr. Violett stated that the requested records are "part of an ongoing investigation that is authorized by Court Order of Warren Circuit Court, Division II, dated May 12, 1998." He further indicated that he had received no response to his requests.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the police department and the county attorney and enclosed a copy of Mr. Violett's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, both agencies provided this office with a response to the issues raised in the appeal.
Responding on behalf of his office, Michael E. Caudill, Warren County Attorney, stated that his office was not the keeper of the requested records and advised that Mr. Violett would need to contact Ms. Pat Goad, Circuit Court Clerk, Warren County Justice Center, 925 Center Street, Bowling Green, Kentucky 42101, to obtain the requested records.
H. Eugene Harmon, counsel for the City of Bowling Green, responding on behalf of the police department, advised that some of the requested records had been mailed to Mr. Violett on January 26, 1999. He argues that Mr. Violett, having indicated that the requested records were needed for an upcoming case, should not be allowed to use the open records laws in lieu of appropriate discovery requests. He stated that requested records, which concerned criminal charges of sexual contact with a minor, had been referred to the then Cabinet for Human Resources and Mr. Violett needed to contact that agency for those documents.
Mr. Harmon further acknowledged that, while the police department was required to respond to requests through the mail, the City of Bowling Green had created its own form and procedures to be used for open records requests and Mr. Violett had made no effort to contact the City to obtain the form or to obtain any other information about these procedures. Finally, Mr. Harmon summarizes by stating that due to Mr. Violett's noncompliance with the City's policies and procedures and the nonpayment of the required fees, the City was under no obligation to respond to his request.
We are asked to determine whether the actions of the Bowling Green Police Department and the Office of the Warren County Attorney were consistent with the Open Records Act. For the reasons that follow, we conclude that the actions of both agencies were procedurally deficient in failing to comply with the requirements of KRS 61.880(1). As to the substantive issue, we conclude that actions of the Office of the County Attorney and the Bowling Green Police Department were in substantial compliance with the Act.
KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days after receipt of a request. From the information before us, neither agency provided Mr. Violett with a timely written response to his request. Accordingly, we conclude that both agency's failure to timely respond within three business days was a procedural violation of the Open Records Act.
Addressing first the substantive actions of the Office of the County Attorney, we conclude the subsequent response, albeit untimely, was in substantial compliance with the Open Records Act. Mr. Violett was advised that the County Attorney was not the keeper of the records he sought, and pursuant to KRS 61.872(4), furnished him with the name of the custodian of the records, the Warren Circuit Court Clerk. KRS 61.872(4) provides:
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 County Attorney's response satisfied the requirements of this statute. Although the Warren Circuit Court Clerk is not bound by the provisions of the Open Records Act, Ex parte Farley, Ky., 570 S.W.2d 617 (1978); York v. Commonwealth, Ky.App., 815 S.W.2d 417 (1991), Mr. Violett may wish to redirect his request to the clerk who will respond under rules established by the Administrative Office of the Courts relating to access to court records.
We turn next to the substantive actions and subsequent response of the police department. Addressing first the Department's argument that Mr. Violett should not be allowed to use the open records laws in lieu of appropriate discovery requests, this office has acknowledged that the Open Records Act should not be used by parties to litigation as a substitute for discovery. 96-ORD-138. We have also recognized that the Act in no way supersedes a protective order, or other court ordered seal of confidentiality, when a public agency is properly before a court as a party to litigation. 94-ORD-19. However, unless materials pertaining to the litigation have been sealed or placed under a protective order, an agency's statutory duties under the Open Records Act are not affected by the presence of the litigation.
Recognizing this fact, this office, in OAG 89-65, cautioned:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
In summary on this issue, Mr. Violett would be entitled to copies of records which the agency had and which can be readily identified from his request. If an exemption is claimed for any records, a brief explanation as to how the cited exemption applies to the records withheld should be provided. KRS 61.880(1).
The Department's January 26, 1999 response indicates it provided Mr. Violett with the records it had which were responsive to his request. Obviously, it could not provide records which it did not have. This office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. Thus, we find that, if the Department did not have certain of the requested records or they do not exist, the Department cannot be said to have violated the Open Records Act in responding to Mr. Violett's request.
Moreover, pursuant to KRS 61.872(4), the Department advised Mr. Violett that he would have to contact the Cabinet for Human Resources [now Cabinet for Health Services] for records related to criminal charges of sexual contact with a minor, as it was the agency to which those matters had been referred and was the custodian of those records.
Accordingly, we conclude that the subsequent response of the Department was consistent with and in substantial compliance with the Open Records Act.
Finally, we note that the Department is correct when it states that KRS 61.872 provides that if a request is made by mail, the official custodian shall mail copies of the requested copies upon receipt of all fees and the cost of mailing. However, we point out that there is nothing in the statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be a basis for rejecting a request to inspect public records. 94-ORD-101.
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 proceeding.