Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Louisville Police Department's response to the open records request of Tommy L. Jones violated the Open Records Act. For the reasons that follow, we conclude it did not.
By letter dated March 11, 2002, Mr. Jones requested the following records:
Open records request on a black male, named Gregory Fitzgerald Hilton, age 35, blk hair brown eyes hgt. 506, wgt 163.
The above subject was arrested on 1/13/99, Time 0815 Location 500 South Preston Street. The subject was stopped in courtyard of U of L Medical School witness saw subject walking through restricted access buildings subject lied about reason to be there. I am sending a criminal history arrest sheet to help assist you in finding a arrest citation report on this criminal.
In his letter of appeal, Mr. Jones alleges that the Department failed to timely respond to his request and that "any person shall have access to any public record. "
After receipt of Notification of Mr. Jones' appeal and a copy of his letter of appeal, Stephanie Harris, Assistant Director of Law, City of Louisville, provided this office with a response to the issues raised in the appeal. In her response, Ms. Harris advised:
By letter dated March 20, 2002, Alicia Smiley in the Louisville Division of Police Press and Public Information Office responded to Mr. Jones' request. Ms. Smiley informed Mr. Jones that the records he requested were not records maintained by the Louisville Division of Police. She further advised Mr. Jones that the proper custodian of the records was the Public Safety Office at the University of Louisville.
The Division of Police's response was not procedurally deficient because the Division responded within the 3-day period mandated by statute. Ms. Smiley acknowledges in her response dated March 20, 2002 that the Division did not receive the request until March 15, 2002. Ms. Smiley advises me that the request was received via U.S. mail late Friday afternoon (March 15th). On Monday the following week, Ms. Smiley researched the Louisville Division of Police records in an effort to determine the availability and/or existence of the records. Ms. Smiley then discovered that the Public Safety Office at the University of Louisville maintained the records. On Wednesday, three days after the receipt of Mr. Jones' request, Ms. Smiley responded to Mr. Jones' request dated March 11, 2002. (Exhibit # 1)
We are asked to determine whether the actions of the Department in response to Mr. Jones' request violated the Open Records Act. We conclude they did not.
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. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Ms. Smiley advised Mr. Jones that the Department did not have the record he requested. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Moreover, 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.
Mr. Jones was notified that the Public Safety Office at the University of Louisville maintained the records he was requesting. Accordingly, we conclude that the Department's response was in substantial compliance with KRS 61.872(4) and did not constitute a violation of the Open Records Act.
Finally, we conclude that the Department's response was within three business days after receipt of Mr. Jones' request, as required by KRS 61.880(1) and, thus, did not violate the procedural requirements of the Open Records Act.
In 96-ORD-207, this office addressed the issue of computation of time for a timely response under the Act. In that decision, we stated:
The computation of time statute, KRS 446.030 (1) (a), which would be applicable to time requirements of the Open Records Act, reads as follows:
The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, a legal holiday, or a day on which the public office in which a document is required to be filed is actually and legally closed, in which event the period runs until the end of the next day which is not one of the days just mentioned. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.
In the instant case, Ms. Harris advised the open records request was received by the Department on Friday, March 15, 2002. This would be the date or day of the act after which the three-day period of time begins to run. Thus, Friday March 15, 2002, would not be included in the three day computation. The intermediate Saturday and Sunday are excluded from the computation. Monday, March 18, 2002, would be day one. Wednesday, March 20, 2002, the day the Department advised it mailed the response, would be day three. Accordingly, we find the Department timely mailed its response within three business days after receipt of the request, as required by KRS 61.880(1).
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.