Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Louisville Department of Inspections, Permits and Licenses violated the Open Records Act in the disposition of Marchell Quisenberry's July 11, 2002, request "to inspect the licenses of Barbara Brown [who] owned an escort service called 'Darling's Escort Service' . . . [that operated] during the month of May, 1993." For the reasons that follow, we affirm the Department's disposition of Mr. Quisenberry's request.
On appeal, Mr. Quisenberry identifies as the offenses allegedly committed by the Department ("checked off" in "referral box[es]"):
KRS 61.880(1) The Three Days to answer requirement[;]
. . .
KRS 61.872(5) Explanation for Denial[;]
. . .
KRS 61.884 Any person shall have access to any public record of said [sic].
Although it is by no means clear, we assume that Mr. Quisenberry challenges the Department's purported failure to respond to his request in writing and within three business days, and to provide an explanation for the apparent denial of that request.
In correspondence directed to this office following commencement of Mr. Quisenberry's appeal, City of Louisville Assistant Director of Law Stephanie Harris advised:
With regards to Mr. Quisenberry's allegation that the City failed to respond within the three day time period, Ms. Diane Looney in the Department of Inspections, Permits and Licenses (IPL) advises me that the request was received in IPL. Ms. Looney does not remember the exact date that the request was received. However, Ms. Looney advises that she responds to open records request the same day the request is received, unless the request is received after 4:00 p.m. If the request is received after 4:00 p.m., she will respond the next business day.
Ms. Looney stated that she recalls responding to the request and in her response to Mr. Quisenberry she referred him to the Jefferson County Public Protection. Ms. Looney further stated that Mr. Quisenberry was referred to the County agency because the City does not handle the licensing of escort services. Unfortunately, Ms. Looney did not retain a copy of the response letter to Mr. Quisenberry.
Mr. Quisenberry's allegation that the City denied him access to public records is unfounded. The records requested by Mr. Quisenberry are not records generated and maintained by the City, therefore, the records do not exist. The City cannot deny access to records that do not exist.
Ms. Harris included an affidavit prepared by Ms. Looney confirming each of these statements.
We do not agree that agency denial of an open records request cannot be premised on the nonexistence of the records requested. 1 However, we believe that the question on appeal is not whether the City of Louisville Department of Inspections, Permits and Licenses properly denied Mr. Quisenberry request, but is instead whether the Department discharged its duty under KRS 61.872(4) by notifying him in writing, and within three business days, that the Department does not have custody or control of the public record requested and furnishing him with the name and location of the official custodian of the custodial agency. While the Department is unable to produce documentary proof that such a written notice was timely issued to Mr. Quisenberry, we assume the truthfulness of Ms. Looney's sworn affidavit and affirm her disposition of the request.
This office has no reason to question Ms. Looney's statement that the City of Louisville Department of Inspection, Permits and Licenses does not license escort services and, therefore, maintains no responsive records. Her response to Mr. Quisenberry, as described in the affidavit attached to Ms. Harris's August 20, 2002 letter to this office, conformed to the requirements of KRS 61.872(4). That statute 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.
Ms. Looney's response appears to have satisfied the requirements of this statute. 2
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.
Footnotes
Footnotes
1 On this issue, the Attorney General recently observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3. Based on Ms. Looney's affidavit, it appears Mr. Quisenberry was properly advised that because the Department does not license escort services, no responsive records exist within its files.
2 To avoid future disputes relative to the content of its open records responses, we urge the Department to permanently maintain copies of these responses as it would any other official correspondence signifying final agency action.