Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Danville 911 Center's actions in response to Steven Fitzgerald's open records request was consistent with the Open Records Act. By letter dated December 27, 1999, Mr. Fitzgerald made a request for the following:
The dispatch records dated from 11:00 pm Dec-11-19-85 up to 6:00 am Dec-12-19-85. All records that show this office dispatched what officer to what location and time of dispatch.
Having received no response to his request, Mr. Fitzgerald initiated this appeal on January 11, 2000. After receipt of Mr. Fitzgerald's appeal, the Attorney General issued written notification to the Center that an open records appeal had been filed in this matter.
By letter dated January 17, 2000, Edward D. Hays, Danville City Attorney, responding on behalf of the Center, advised this office:
I have discussed this matter with Ms. Price [Chief Dispatcher for the City of Danville] and have learned that the information sought by Mr. Fitzgerald is simply not available. Mr. Fitzgerald had requested copies of a dispatch tape or tapes which had been made in about 1984. The document retention policy of the City of Danville does not require that such records be maintained for such a long period of time. Consequently, the requested information is simply not available. According to Ms. Price, she gave a similar response last week to a lady who identified herself as the mother of Mr. Fitzgerald.
For the reasons that follow, we conclude the Center's actions in relation to Mr. Fitzgerald's request, although procedurally deficient, was in substantial compliance with the Open Records Act.
The Center actions were inconsistent with the procedural requirements of KRS 61.880(1) in its handling of Mr. Fitzgerald's request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This statute requires a timely, written response directed to the person making the request. The failure to provide Mr. Fitzgerald with a written response within three business days after receipt of his request was a procedural violation of the Act.
Turning to the substantive issue, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134.
The Danville 911 Center has advised that it does not have the requested records and that its document retention policy does not require the City to maintain such records for such a long period of time. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Center fully discharged this duty. Accordingly, we find that the actions of the Center were substantively in accord with the requirements of the Open Records Act.
We have confirmed, through the Department for Libraries and Archives, that the Danville 911 Center's records policies are consistent with the Local Government Model of the State Records Retention Schedule. The retention schedule for 911 dispatch tapes, a copy of which is attached hereto, provides the following disposition instructions:
Erase and reuse in 30 days if there is no investigation relating to information on the tape. If being used in an investigation maintain until disposition of the case. Then erase and reuse.
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.