Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department violated the Open Records Act in the disposition of Eric Cunningham's December 14, 2003 request for "investigative reports on case file # 96-0558," and his December 16, 2003 request for "chain of custody case file # 96-0558" and "Police policy and procedures articles 38, 97, 91, 55." We respectfully decline to consider Mr. Cunningham's complaint concerning the disposition of his December 14, 2003 request because Mr. Cunningham did not provide this office with the statutorily required documentation. KRS 61.880(2)(a); 40 KAR 1:030 Section 1. With reference to Mr. Cunningham's complaint concerning the disposition of his December 16, 2003 request for records relating to the chain of custody for evidence seized on April 11, 1996 and police policies and procedures 38, 97, 91, and 55, we find that the Department violated KRS 61.880(1) in failing to respond and that unless it can articulate a statutory basis upon which that request can properly be denied, it must provide Mr. Cunningham with copies of all existing records that are responsive to his request upon prepayment of reasonable copying charges.
On January 6, 2004, this office received a multi-page document from Mr. Cunningham consisting of:
. A typed complaint dated January 1, 2004 and addressed to Amye Bensenhaver "appealing another open records denial [sic] submitted to Alicia M. Smiley . . . to inspect the chain of custody of the evidence seized on 4-11-96 and police policy [sic] and procedures 38, 97, 91, and 55";
. A handwritten open records application to Alicia M. Smiley dated December 16, 2003 requesting "a copy of my chain of custody of the evidence seized on 4/11/96 and the policies in attached request";
. A yellow copy of Finance and Administration Cabinet Form B-010-1 "Request to Inspect Public Records Re KRS Ch. 61" requesting access to "Chain of Custody Case File # 96-0558 evidence seized on 4/11/96 . . . Police policy and procedures article 38, 97, 91, 55";
. A typed complaint dated December 23, 2003 and addressed to James M. Ringo "appeal[ing] the denial of [Mr. Cunningham's] request [for] police notes of Officer 6224 on 4/10/96 . . .";
. A typed response from Alicia M. Smiley, Public Information Specialist for the Louisville Metro Police Department, dated December 18, 2003 and addressed to Mr. Cunningham.
The multi-page document did not contain a copy of the December 14, 2003 request that prompted Ms. Smiley's December 18 response.
On January 8, 2004, this office issued notification of receipt of Mr. Cunningham's appeal to William P. O'Brien, Director of the Civil Division of the Jefferson County Attorney's Office, Kris M. Carlton, Assistant Jefferson County Attorney, and Mr. Cunningham pursuant to 40 KAR 1:030 Section 2. Along with our notification, we attached copies of the multi-page document we received from Mr. Cunningham, the contents of which are described above. On January 12, 2004, Ms. Karlton responded to the notification of appeal "with regard to the allegation by Mr. Eric Cunningham that his Open Records request from December 16, 2003 [sic] 1 was not answered within three business days, pursuant to KRS 61.880(1)." Although she provided a thorough and well-reasoned response to this allegation, Ms. Karlton did not respond to Mr. Cunningham's allegation that the Department failed to respond to his request for records relating to "the chain of custody of the evidence seized on 4-11-96 and police policy [sic] and procedures 38, 97, 91, and 55." While we appreciate Ms. Karlton's efforts in this regard, we decline to consider that portion of Mr. Cunningham's appeal relating to investigative reports and officer's notes on the basis of KRS 61.880(2)(a) and 40 KAR 1:030 Section 1.
40 KAR 1:030 Section 1 provides:
The Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2) , requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
This provision mirrors KRS 61.880(2)(a) which provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
This is the record upon which the Attorney General relies in reviewing public agency action. Although the Attorney General is statutorily charged with the duty to review appeals concerning records access under KRS 61.880(2) , it is incumbent on the complaining party to provide the Attorney General with both the agency's written denial, if the agency provided a denial, and his or her written request. 40 KAR 1:030 Section 1 precludes this office from considering nonconforming appeals. Because that portion of Mr. Cunningham's appeal pertaining to his December 14 request for an investigative file and officer's notes did not conform to the requirements of KRS 61.880(2), insofar as it did not include a copy of his written request, we are foreclosed from considering that issue on appeal.
It appears that the Department did not respond to Mr. Cunningham's December 16 request for chain of custody records and police policies, in writing and within three business days of receipt of that request as required by KRS 61.880(1), or at any time since he initiated this appeal. To this extent, its inaction constituted a violation of KRS 61.880(1). The Department is obviously familiar with the requirements for agency response codified at KRS 61.880(1), and this omission was no doubt attributable to oversight and the fact that Mr. Cunningham challenged the Department's actions relative to two open records requests in a single open records appeal. It is, however, incumbent on the Department to respond to the pending request by disclosing the records identified in that request within three business days of receipt of this decision or notifying Mr. Cunningham in writing, and again within three business days, why his request cannot be honored and identifying the statutory exemption(s) authorizing nondisclosure. We urge the Department to carefully review all correspondence constituting an open records appeal, and appended to our notification of receipt of appeal, to insure full compliance with the requirements of the Act.
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.Eric Cunningham, # 151116Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
William P. O'BrienDirector of Civil DivisionJefferson County Attorney's Office1001 Fiscal Court buildingLouisville, KY 40202
Kris M. CarltonAssistant Jefferson County Attorney1001 Fiscal Court buildingLouisville, KY 40202
Footnotes
Footnotes
1 Mr. Cunningham's request for investigative reports from a 1996 case and the police officer's notes was actually dated December 14, 2003 and not December 16, 2003. In the latter request, Mr. Cunningham sought access to chain of custody records and police policies. He provided this office with a copy of his December 16 request but not his December 14 request.
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