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 actions of the Louisville Metro Police Department relative to the opens records requests of Marion Fletcher for radio transmissions and disciplinary reports for five officers employed by the Louisville Metro Police Department violated the Open Records Act. For the reasons that follow, we find that the actions of the Department did not violate the Act.
On March 12, 2003, Mr. Fletcher initiated this appeal to the Attorney General utilizing a typewritten form that identifies alleged agency violations by "check[] off in the referral box." Mr. Fletcher "checked off":KRS 61.880(1)The Three Days to answer requirement.KRS 61.872(2)Application to Inspect.KRS 61.884Any person shall have access to any publicrecord of said.
In addition to the above, Mr. Fletcher attached copies of his two March 10, 2003 request letters.
After receipt of Notification of the appeal and a copy of the letter of appeal and Mr. Fletcher's request letters, Alicia M. Smiley, Public Information Specialist, on behalf of the Department, provided this office with a response to the issues raised in the appeal. In her response, Ms. Smiley advised:
In his appeal Mr. Fletcher alleges that the Department failed to respond to his request within the three day requirement and that the Department denied him an opportunity to inspect records. This office has received numerous Open Records Request from inmates at Northpoint Training Center and has dutifully complied with these requests. In this particular instance, the Department did not receive either of Mr. Fletcher's requests. We are unable to track the delivery of his request and cannot determine if the error occurred with the U.S. Postal System or the Metro Louisville government Mail Department. Rather than re-submit the request to this Department, Mr. Fletcher waited more than two months to make an appeal to the Attorney General's Office.
To rectify this error, the Department is sending Mr. Fletcher the enclosed disciplinary reports for the following officers: Officer M. Smithers; Officer G. Reed; Officer B. Morgan, and Officer S. Wachowiak. A review of personnel and professional standards files did not locate any disciplinary action for Officer D. Butler.
Our officers initiate stops and are radio dispatched to specific addresses and/or streets. We are unable to locate any radio transmissions based upon the information provided by Mr. Fletcher. By way of this letter, we are asking Mr. Fletcher to please provide us with a location where the arrest occurred so we may conduct a more thorough search for the audio tape he is requesting. We would also ask that Mr. Fletcher please forward a $ 3.00 check or money order, payable to the Louisville Metro Police. This money is the fee charged to cover the cost of materials and postage.
We are asked to determine whether the actions of the Department were in violation of the Open Records Act. For the reasons that follow we conclude, that the actions of the agency were proper and did not constitute a violation of the Act.
We address first the request for disciplinary reports for five officers employed by the Louisville Metro Police Department. As noted above, the Department is providing Mr. Fletcher with copies of the disciplinary reports it has for four of the named officers. 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 Department has or will make these requested records available to Mr. Fletcher, the appeal as to them is moot and no decision will be rendered on this issue.
Moreover, we find that the Department complied with the Open Records Act by advising Mr. Fletcher that it did not have any disciplinary reports for Officer D. Butler. 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. Thus, we conclude the Department did not violate the Open Records Act in this regard.
Next, we address the Department's failure to respond to Mr. Fletcher's January 10, 2003 requests. In its response to the letter of appeal, the Department indicated that it had never received the requests and that it had insufficient information to "to track the delivery of his request and cannot determine if the error occurred with the U.S. Postal System or the Metro Louisville government Mail Department." The Department further acknowledged its responsibility to timely respond to open records requests. To the extent that the failure to receive Mr. Fletcher's requests was an error on the Department's part, we find that the error was mitigated by the agency's prompt response to the requests after receipt of copies of them, along with the Notification of the appeal, from this office.
Finally, we address the request for a copy of the radio transmissions. In response to this request, the Department advised him that it was unable to locate these records based upon the information provided and asked that he provide the address or location where the arrest occurred so it could conduct a more thorough search for the audio tape he was seeking. It did not deny the request. Accordingly, if he has not already done so, Mr. Fletcher may wish to resubmit his request and provide the Department the additional information so that it can locate the audio tape he is seeking.
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.