Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The issue in this appeal is whether the actions of the Louisa Police Department and Louisa Fire Department relative to the October 3, 2000 open records requests of David T. Adams for copies of the Departments' records concerning their response to a fire at Old U.S. 23 Discount Tobacco on July 31, 1996 violated the Open Records Act. In his letter of appeal, dated December 11, 2000, Mr. Adams indicated he had not received a response to his requests.
After receipt of Notification to Agency of Receipt of Open Records Appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, each agency provided this office with a response to the issues raised in the appeal.
Kevin T. Adkins, Chief of Police, Louisa Police Department, provided this office with a letter to Mr. Adams, dated December 13, 2000, in which he advised, in relevant part:
Per our conversation on 12-12-2000, the Louisa Police Department has no report on file with regards to the fire at the Old U.S. 23 Discount Tobacco store from July 31, 1996.
Our patrolman that responded to this incident stayed on the scene until the Louisa Fire Department responded and began to fight the fire. This business is located outside the City limits and the officer was only standing by for traffic control.
By letter dated December 14, 2000, Eddie Preston, Chief, Louisa Fire Department, advised this office that on December 13, 2000, he faxed Mr. Adams a copy of the requested fire incident report.
We are asked to determine whether the actions of the two agencies were in violation of the Open Records Act. For the reasons that follow we conclude, that with the exception of procedural deficiencies, the actions of the agencies were proper and did not constitute a violation of the Act.
KRS 61.880(1) sets forth the procedural guidelines for agency response to an open records 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.
Both agencies were procedurally deficient in failing to respond to the open records requests in writing within three business days after receipt of the requests, as required by KRS 61.880(1).
Turning to the substantive issue in this appeal, we find that the Louisa Police Department subsequently complied with the Open Records Act by advising Mr. Adams that it did not have a report on the fire. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
As noted above, the Louisa Fire Department provided Mr. Adams with a copy of the record he requested. 40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since the Fire Department made the requested record available, the appeal as to this record request is moot and no decision will be rendered.
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.
David T. Adams328 Main StreetP.O. Box 1176Paintsville, KY 41240
Eddie Preston, ChiefLouisa Fire Department215 North Main Cross StreetLouisa, KY 41230
Kevin Adkins, ChiefLouisa Police Department215 North Main Cross StreetLouisa, KY 41230
Eldred E. Adams Louisa City Attorney110 East Main StreetLouisa, KY 41230