Request By:
Elbert A. Powell
116 South Hopkinsville Street
P.O. Box 601
Nortonville, KY 42442Terry Jones
Central Dispatcher
99 East Center Street
Madisonville, KY 42431Joe A. Evans III
City Attorney
P.O. Box 695
Madisonville, KY 42431
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 responses of the Madisonville-Hopkins County Central Dispatch (Central Dispatch) and the City of Madisonville to separate but similar open records requests by Elbert Powell violated the Open Records Act. For the reasons that follow, we find no violations of the Act.
By letter dated November 8, 2003, Mr. Powell submitted an open records request to Terry Jones, Central Dispatch, in which he made the following request:
I would like to know if any County Officer has made any calls and times to Nortonville when Chief Vaughn has been off duty in the last two months. I would also like to know the 10-8 and 10-7 times for Nortonville Chief Vaughn, Unit 505, for the last two months.
If I cannot receive this information for two months, please advise me if I can have it for at least 30 days.
By letter dated November 19, 2003, Joe A. Evans, III, Madisonville City Attorney, responded to Mr. Powell's request, advising:
In response to your recent Open Records request, please find enclosed a five page printout showing units dispatched to the Nortonville area for the period September 17, 2003 through November 16, 2003. Central Dispatch does not maintain records reflecting the 10-8 and 10-7 times for Nortonville Chief Vaughn, Unit 505, for the last two months.
By letter dated November 21, 2003, Mr. Powell submitted another open records request, this time to Mayor Karen Cunningham, City of Madisonville, requesting:
Under the open records request, I am asking for the records from September 17, 2003 to November 16, 2003 that will show when Chief Vaughn, Unit 505, goes on duty during the day or night and when he goes off duty during the day or night. If you would please obtain this information from Central Dispatch. It would be greatly appreciated.
I understand from Mr. Joe Evans III that Central Dispatch does not maintain records reflecting the 10-8 and 10-7 times for Nortonville Chief Vaughn, Unit 505. Maybe I did not make myself clear in my first request. 10-8 means goes on duty, 10-7 means goes off duty. I am sorry for any confusion.
If I have not sent this request to the appropriate person would you please forward this to the correct individual. Again, thank you for your help.
By letter dated November 26, 2003, Mr. Evans, on behalf of the City, responded to Mr. Powell's request, stating:
As I advised you in my letter dated November 19, 2003, Central Dispatch does not maintain records reflecting the 10-8 and 10-7 times for Nortonville Chief Vaughn, Unit 505, for the period September 17, 2003 to November 16, 2003. For purposes of this letter, 10-8 means goes on duty, 10-7 means goes off duty.
As a result of the foregoing, Mr. Powell initiated an appeal to this office asking whether the responses of the two agencies relating to his request for "the 10-8 and 10-7 times from the central dispatch system that houses all our county and city police officers except for Dawson Springs."
After receipt of Notification of the appeal and a copy of Mr. Powell's letter of appeal, Mr. Evans provided this office with a response to the issues raised in the appeal. In his response, he explained that Chief Vaughn was an employee of the City of Nortonville and was not an employee in any way associated with the City of Madisonville. Addressing records at issue in this appeal, Mr. Evans reiterated the agencies' original responses that Central Dispatch does not have records reflecting the 10-8 and 10-7 times for Chief Vaughn, and thus was not required under the Open Records Act to create a record that did not exist. 1
We are asked to determine whether the actions of the Madisonville-Hopkins County Central Dispatch and City of Madisonville violated the Open Records Act. For the reasons that follow, we find that the responses of the two agencies were proper and did not constitute a violation of the Act.
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; 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Mr. Evans, responding for both the Dispatch Center and the City of Madisonville, affirmatively advised Mr. Powell that the Dispatch Center does not maintain records reflecting the times when Chief Vaughn goes on and off duty, and thus, neither agency had the requested records. Since the records do not exist at either agency, neither is required to create such a record to satisfy a particular open records request under the Open Records Act. 03-ORD-133. Accordingly, we find no violation of the Open Records Act in this regard.
Nevertheless, it appears that the City obtained from the City of Nortonville and provided Mr. Powell with at least some of the information he requested reflecting the times when Nortonville Chief Vaughn goes on and off duty. In his letter of appeal, Mr. Powell indicated that along with his letter of November 26, 2003, the City had provided a copy of "some kind of schedule but was not official." A copy of the schedule was enclosed with Mr. Powell's letter of appeal. Our review of the schedule indicates that at the top of the schedule is written "Tim Vaughn U/505 November 2003." Below this nomenclature is a monthly calendar showing the working hours for Vaughn, including the starting and quitting times for each day worked and the days off. The schedule further indicates that the copy was faxed from the City of Nortonville's fax number to the Madisonville Police Department on November 26, 2003.
Mr. Powell states the schedule provided to him was not "official." The Open Records Act does not dictate the format in which a public agency maintains its records. The document appears to be a work schedule record that is maintained by the City of Nortonville. As Mr. Evans explained in his response to this office, Chief Vaughn is an employee of the City of Nortonville. Accordingly, we conclude that this portion of the City's response providing him with a record from another city went beyond that required by the Open Records Act and thus would not constitute a violation. If Mr. Powell wants additional or different types of records from the City of Nortonville concerning its employees, he may wish to submit a request to that agency.
Finally, Mr. Powell states in his letter of appeal that he received a response to his request, dated November 8, 2003 on November 19, 2003. He states this was eleven days later and implies the City's response was untimely.
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.
A handwritten notation on the copy of Mr. Powell's November 8, 2003 request provided this office states "mailed on the 10 of Nov." In his response to this office, Mr. Evans addressed this issue, advising, in relevant part:
Attached herewith is a copy of the envelope addressed to Terry Jones showing a postmark of November 10, 2003. The letter was received by the City of Madisonville on November 14, 2003.
The City's response was dated November 19, 2003. As noted above, Mr. Evans advised the open records request was received by the City on Friday, November 14, 2003. This would be the date or day of the act after which the three-day period of time begins to run. Thus, Friday November 14, 2003, would not be included in the three day computation. The intermediate Saturday and Sunday are excluded from the computation. Monday, November 17, 2003, would be day one. Wednesday, November 19, 2003, the day the City advised it mailed the response, would be day three. Accordingly, we find the City 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.
Footnotes
Footnotes
1 Addressing the portion of Mr. Powell's request that he would "like to know if any County Officer has made any calls and times to Nortonville when Chief Vaughn has been off duty in the last two months," Mr. Evans advised that in response to this request, Mr. Powell had been provided a "five page printout showing units dispatched to the Nortonville area for the period of September 17, 2003 through November 16, 2003." Mr. Powell does not challenge this response or action in his appeal and since it appears he was provided these requested records, we conclude that the issue as to these records is moot and no decision will be rendered in this regard. 40 KAR 1:030, Section 6.