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 Newport Police Department violated the Open Records Act in the disposition of Chris Henson's April 5, 2004 request for records relating to five individuals identified by name, race, gender, and, in one case, date of birth. Specifically, Mr. Henson requested copies of uniform offense reports, for the past eight years, identifying the named individuals as the complainant. For the reasons that follow, we find that the Department's failure to respond to Mr. Henson's request constituted a violation of KRS 61.880(1). However, the record on appeal does not support Mr. Henson's claim of a substantive violation of the law arising from the Department's belated response to his request.
In his letter of appeal, Mr. Henson explained that he mailed his original written request to the Department's official custodian of records but received no response. He resubmitted his written request to the Department's records manager on April 12, 2004, but again received no response. On April 18, 2004, he initiated this appeal, questioning the Department's failure to comply with the procedural requirements of the Open Records Act.
Upon receipt of this office's Notification of Receipt of Appeal, Newport City Solicitor, Michael L. Schulkens, responded on behalf of the Department asserting that neither he nor the city clerk had any knowledge of Mr. Henson's requests. Continuing, he observed:
Had the City Clerk received this request, or me we would have attempted to respond to the request by informing Mr. Henson that his request for all of the individuals accept [sic] one could not be effectively processed. A date of birth or a Social Security number are needed to process such a request. Failure to have such identifying data could provide misleading and/or incorrect data on innocent individuals. Only the name, "John Edward Spegal," had the needed identifying data.
Nevertheless, Mr. Schulkens advised, he contacted "the Police Department and they have no UOR's on any of the individuals listed on Mr. Henson's letter." Further, Mr. Schulkens acknowledged that "an officer [he] spoke to indicated that he was supposed to respond to Mr. Henson but forgot to do so."
Shortly thereafter, Mr. Henson responded that prior to submitting his original request, he spoke with a records officer in the Newport Police Department and confirmed that the only information necessary for the Department to conduct a search for uniform offense reports identifying an individual as a complainant was the individual's name, gender, and race. He concluded that Mr. Schulkens effectively conceded that the descriptions were adequate when he "checked with the Police Department" and ascertained that "they have no UOR's on any of the individuals listed on Mr. Henson's letter." While we concur with Mr. Henson in his view that the Department's failure to respond to his request constituted a violation of KRS 61.880(1), and that the Department's assertion that the descriptions given were inadequate to conduct a search was inconsistent with the statement that it has "no UOR's on any of the individuals listed on Mr. Henson's letter," we do not find that the record on appeal supports Mr. Henson's assertion that both he and this office "are being lied too [sic]."
It is well established that a public agency cannot afford a requester access to a record which does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist.
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirement of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 00-ORD-120 (x-rays of inmate's injuries not taken and therefore responsive record did not exist); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention requirements and were therefore not available for review).
In his response to this office's notification of appeal, Mr. Schulkens indicates that the Department conducted a search for responsive records, at his prompting, and located no records that were responsive to Mr. Henson's request. 1 Mr. Henson has adduced no proof to contradict this statement, such as an affidavit from one or more of the named individuals describing an incident in which he or she was involved as a complainant or victim in the past eight years, or even a general allegation based on Mr. Henson's own information and belief. As noted, there is nothing "in the record on appeal that appears to raise the issue of good faith," and we therefore decline "to question the [Department's] veracity." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
While there may be occasions when, under the mandate of KRS 61.8715, the Attorney General refers an open records appeal and decision to the Department for Libraries and Archives for further inquiry under Chapter 171, we do not believe that this appeal warrants additional inquiries. The Department has satisfied its statutory duty by explaining that no responsive records exist. We find no substantive error in the Department's response to Mr. Henson's request.
Nevertheless, the Department committed a procedural violation of the Open Records Act when it failed to respond to Mr. Henson's request(s). Specifically, KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. The Newport Police Department did not respond in writing to Mr. Henson's request; nor did it cite a specific exception authorizing nondisclosure or otherwise explain that no responsive records exist. The Department's inaction constituted a procedural violation of the Open Records Act. We remind the Department that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request," 93-ORD-125, p. 5, and urge Department officials and employees to review the cited provision to insure that future responses conform to the Open Records 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.
Distributed to:
Chris Henson1939 Augustine AvenueCovington, KY 41014--1117
Thomas FrommeChief of PoliceNewport Police Department998 Monmouth StreetNewport, KY 41071
Paula WilliamsonCity Clerk 998 Monmouth StreetNewport, KY 41071
Michael L. SchulkensCity Solicitor998 Monmouth StreetNewport, KY 41071
Footnotes
Footnotes
1 Our conclusion is premised upon the assumption that the Department conducted an adequate search for uniform offense reports for the past eight years in which one or more of the named individuals was identified as the complainant and not as the offender. If this is not the case, the Department must conduct a search aimed at locating reports identifying the named individuals as complainants.