Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government Division of Police (Division) violated the Open Records Act in the disposition of Everett Simpson's request for a copy of the forensic laboratory examination results of a gunshot residue test performed upon Bonafacio Gama-Cruz. For the reasons that follow, we find the Division's response affirmatively advising him that the requested record did not exist was proper and did not constitute a violation of the Act.
By letter dated April 15, 2004, Mr. Simpson submitted an open records request to the Division requesting a:
Copy of Forensic Laboratory Examination results of Gunshot Residue Test performed upon Bonafacio Gamas-Cruz, listed as Item #7 on Division of Police Property and Evidence Record Sheet, returned to L.F.U.C.G.P.D by Kentucky State Forensic Lab.
By letter dated April 21, 2004, Lieutenant Alan Martin, Bureau of Investigations, Investigative Support Section of the Division, responded to Mr. Simpson's request, received on April 19, 2004, advising:
The Lexington Division of Police did not request a Forensic Laboratory Examination of item #7, Gunshot Residue from Bonofacio-Cruz, Case Number 99-79910. Therefore, no Forensic Laboratory Examination results for item #7, Gunshot Residue from Bonofacio-Cruz, Case Number 99-79910 are available. The Lexington Division of Police is considering your Open Records Request satisfied.
As a result of the Division's denial of this request, Mr. Simpson initiated the instant appeal.
After receipt of notification of the appeal and a copy of the letter of appeal, Michael R. Sanner, Corporate Counsel, Lexington Fayette Urban County Government, provided this office with a response to the issues raised in the appeal. In his response, Mr. Sanner reiterated the Division's original response that, because it did not request a forensic laboratory examination of item #7, Gunshot Residue from Bonofacio-Cruz, Case Number 99-79910, there were no test results record to provide for Mr. Simpson's inspection. He argued that a public agency cannot afford a requester access to a record that does not exist. We agree.
Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Division explained that because it did not request a forensic laboratory examination for item "#7, Gunshot Residue from Bonofacio-Cruz, Case Number 99-79910," no such test results record existed for his inspection. The Division discharged its duty under the Open Records Act by affirmatively so advising and explaining why the requested record did not exist. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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.