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 Kentucky State Police violated the Open Records Act in the disposition of John Yarbrough's September 6, 2002, request for the "[r]ecord (other than KSP Communications Log Index 57147 already received) of other officers present, not in KSP trooper uniform, at roadblock May 4, 2002 midnight @ Ky. 2171," and his subsequent attempts to identify the particular officer "dressed in a black, 'swat team' outfit, . . . who threatened to arrest [Mr. Yarbrough]." For the reasons that follow, we affirm KSP's disposition of Mr. Yarbrough's request.
By letter dated September 11, 2002, KSP advised Mr. Yarbrough:
Other than the names of the Kentucky State Police officers who were present at the road block on May 4, 2002 which you have previously been given, we have no record of other officers who might have been there.
In supplemental correspondence directed to this office following commencement of this appeal, KSP Staff Attorney Roger Wright elaborated on the agency's position explaining:
From our review of the documents attached to Yarbrough's appeal, it appears that Yarbrough's requests were properly denied insofar as he sought information concerning the identity of the subject officer as opposed to requesting a specific record. Notwithstanding this fact, we have determined that it appears that Earlington Police Department Officer Chris Proctor was the officer present at the traffic safety checkpoint at issue.
Dissatisfied with KSP's supplemental response, and questioning the truthfulness of the latter statement, Mr. Yarbrough subsequently tendered a series of letters in which he demanded a record confirming Officer Proctor's presence at the road block and sought to disprove KSP's claim. It is his belief that the officer "must be some special agent who is worth the trouble to protect." In support, he references various documents obtained through other open records requests which, in his view, cast doubt on KSP's assertion that Office Proctor is the officer whose identity he seeks.
On June 1, 2004, Mr. Wright submitted a final response to this office in an attempt to resolve any lingering doubts. He observed:
Upon review of KSP records, it appears the only records that KSP possesses which would be responsive to Yarbrough's request are documents contained within Internal Affairs Inquiry (IAQ) No. 03-013. This Internal Affairs inquiry was conducted at Yarbrough's request based upon a complaint filed on June 6, 2003, in which Yarbrough alleged KSP Trooper Jeff McWhorter perjured himself on several occasions during Yarbrough's DUI trial.
As part of IAQ No. 03-013, KSP obtained a written statement dated July 9, 2003, from Earlington Police Department Officer Chris Proctor in which Officer Proctor states that he was present during Yarbrough's arrest on May 4, 2002. Accordingly, KSP would have possessed no documents responsive to Yarbrough's 2002 requests for information concerning the identity of Officer Proctor. KSP does not believe it has any obligation to treat an Open Records request as continuing such that it has a duty to provide records that later come into existence following submission of a request.
We agree.
Mr. Yarbrough has expended considerable time and effort in this and related open records matters. Unfortunately, this is not the appropriate forum for resolution of a factual dispute concerning the identity of a police officer. In past decisions directed to Mr. Yarbrough, we have attempted to explain our limited role in adjudicating open records disputes. Further, we have advised him:
This office has long recognized that a public agency cannot provide access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents on behalf of a requester who claims that they must exist notwithstanding the agency's claim to the contrary. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
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 requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and of 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 in state government]." 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.
04-ORD-032, p. 3. In the cited open records decision, we found that although there are occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, the facts of that appeal did not warrant additional inquiry by this office or referral to the Department for Libraries and Archives.
In 04-ORD-032, this office also refused to entertain a claim that the responsive records furnished were not sufficiently "verifiable." At page 4, we opined:
This is not, in our view, a question that arises under the Open Records Act, nor is it one that we are capable of resolving in an open records decision. Accord, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General declined to consider this issue as one incapable of resolution under the Open Records Act) .
04-ORD-032, p. 4. The reasoning of 04-ORD-032 is dispositive of the issue Mr. Yarbrough raises in this appeal.
When Mr. Yarbrough submitted his open records requests to KSP in 2002, no record existed within that agency that contained the information he sought. KSP discharged its statutory duty by so notifying Mr. Yarbrough. 02-ORD-38; 01-ORD-59; 01-ORD-220; 02-ORD-144. When, two years later, he initiated this appeal, KSP located a record produced after submission of the requests giving rise to the appeal which confirmed Officer Proctor's presence at the roadblock. We concur with KSP in the view that it had no obligation to treat Mr. Yarbrough's request as a continuing or standing request or to otherwise produce the record for inspection except upon submission of a new request and only if the record did not qualify for exclusion under one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l). See OAG 92-30 (holding that the Attorney General "has never recognized the validity of a standing request"); see also, OAG 91-78; OAG 90-112; 95-ORD-43; 99-ORD-110. Although it was not legally bound to do so, KSP voluntarily furnished him with the name of the officer after he initiated this appeal. The Open Records Act did not require it to do so and most certainly did not require more.
Here, as in 04-ORD-032, we decline Mr. Yarbrough's invitation to entertain his claim that the information voluntarily provided is inaccurate. "This is not, in our view, a question that arises under the Open Records Act, nor is it one that we are capable of resolving in an open records decision." Id. at p. 4. KSP's responses to his 2002 requests were consistent with the requirements of the Act, insofar as it could not make available for inspection a document which it did not have in its possession at the time of those requests, and it has fully satisfied its burden of proof in sustaining these actions in the instant appeal. KRS 61.880(2)(c). Nor do the facts of this appeal warrant a referral to the Department for Libraries and Archives per KRS 61.8715. Here, as in 04-ORD-032, our decision represents the Attorney General's final resolution of the issue raised, and we will not reconsider our decision. 40 KAR 1:030 Section 4.
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.