Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Spencer County 911 Dispatch violated the Kentucky Open Records Act in denying the request of Mary Lou Hall for copies of certification records relating to Russell and Marlene Cranmer, owners and operators of 911 Dispatch, and specified dispatchers. Because part-time employees such as the dispatchers in question are not statutorily required to be certified, nor are any currently certified with the exception of Russell Cranmer, Jr., whose certification has been provided to Ms. Hall, no other records exist which are responsive to Ms. Hall's request. Accordingly, this office concludes that 911 Dispatch belatedly discharged its statutory duty by affirmatively indicating as much to Ms. Hall in writing.
On April 15, 2005, Ms. Hall submitted her original request for the "following information" 1 to Sheriff Steve Coulter:
1) A list of all employ[ees] on the Spencer Co. 911 Dispatch Service including the contract holders.
2) A list of those employ[ees] who have been certified and those who are on dispatch that have not been certified.
3) Dates when those that are certified became certified.
4) Place where certification took place.
By letter of the same date delivered to Ms. Hall via certified mail on April 20, 2005, 911 Dispatch denied her request. In relevant part, 911 Dispatch responded:
The 911 dispatch is operated [under] a contract. The amount of the contract is $ 112,430.24. The contract holders are Russell [and] Marlene Cranmer. Marlene Cramner or any of the Spencer County 911 dispatchers are not considered Spencer County employees. They receive no pay, insurance benefits, or compensation from Spencer County. These employees are independent employees for Russell [and] Marlene Cranmer. These employees have the same privacy [rights] in regards to their wages and tax returns as you do. You are not entitled to that information or the information of who has been certified, where they have been certified or when. Russell Cranmer is an employee of the Spencer County Sheriff's office and you can request his pay information through the Spencer County Judge's office.
In a letter dated April 20, 2005, Ms. Hall reiterated her request for "a copy of the certification" for the following people:
1) Russell Cranmer
2) Marlene Cranmer
3) Tabitha King
4) Russ Cranmer Jr.
5) Becky Manning
6) Ethel Swan
7) Rob Hance
Having received no response, Mr. Hall initiated this appeal by letter dated April 29, 2005. Attached to Ms. Hall's letter of appeal are copies of her requests, dated April 15, 2005, and April 20, 2005, respectively, the original response of 911 Dispatch dated April 15, 2005, and the certified mail documentation reflecting that 911 Dispatch received her second request on April 20, 2005, and mailed its response to her original request on the same date. 2
Upon receiving notification of Ms. Hall's appeal from this office, Ruth A. Hollan, Spencer County Attorney, responded on behalf of 911 Dispatch. Acknowledging that 911 Dispatch is a "public agency" for purposes of the Open Records Act pursuant to KRS 61.870(1)(h) "because it receives more than 25% of its funding from state/local funds," and that the certifications requested would be "public records" pursuant to KRS 61.870(2) "as they relate to operations and functions funded by state or local authority," Ms. Hollan nevertheless asserts that dispatchers for this 911 service are not required to be certified. According to Ms. Hollan:
They are not criminal justice information system telecommunicators or law enforcement telecommunicators as defined in KRS 15.530, since the dispatch services does not access the CJIS. 3 Nor are the dispatchers full-time public employees. They are part-time employees of Spencer County 911 Dispatch owned by Russell and Marlene Cranmer. Nor is the primary responsibility of the dispatchers the dispatch of law enforcement. They also dispatch fire, rescue, ambulance, and wrecker services.
Mary Lou Hall requested certification records for the following persons: Russell Cranmer, Marlene Cranmer, Tabitha King, Becky Manning, Ethel Swan, and Rob Hance. As stated above, these individuals are not required to be certified, nor are they at this time. Therefore, there are no records to disclose pursuant to this request. Russell Cranmer, Jr., is certified and that certification will be forwarded to Mary Lou Hall. 4
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that 911 Dispatch cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 5 In addressing the obligations of a public agency when denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as 911 Dispatch ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy its burden of proof, an agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with the applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct the investigation).
On appeal, the 911 Dispatch asserts that no records exist which are responsive to Ms. Hall's request, with the exception of the record provided, because "the dispatchers for this 911 service are not required to be certified," nor are the dispatchers certified. Accordingly, the question becomes whether the dispatchers whose "certification [s]" have been requested are properly characterized as "law enforcement telecommunicator [s]" within the definition codified at KRS 15.530(5), to whom the statutory requirement to complete the "Law enforcement telecommunicator basic training program" and/or the non-CJIS telecommunications academy applies. If not, it necessarily follows that no records attesting to their successful completion of the requisite training exist.
Resolution of the instant appeal turns on the language of KRS 15.530, which provides that for purposes of KRS 15.540 to 15.590:
"Law enforcement telecommunicator" means any full-time employee whose primary responsibility is to dispatch law enforcement units by means of radio communications for an agency which is part of or administered by the state or any political subdivision.
(Emphasis added). When called upon to render a decision involving statutory interpretation, this office is required "to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, the Attorney General must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, this office "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, 939 S.W.2d 340, 345 (1997). Our analysis is necessarily guided by these fundamental principles as well as the legislative statement of policy codified at KRS 61.871, "that free and open examination of public records is in the public interest . . ."
By its express terms, KRS 15.530 applies only to "full-time public" employees. Lacking from the record is any objective evidence to refute the assertion by 911 Dispatch that the dispatchers whose qualifications are at issue are employed on a part-time basis. Standing alone, this status removes the dispatchers from the definition codified at KRS 15.530. Equally lacking is any evidence regarding their responsibilities aside from the statement by Ms. Hollan. Assuming that dispatch of law enforcement is not the "primary responsibility" of the named dispatchers, as 911 Dispatch contends, the dispatchers would also be exempt from the training requirements of KRS 15.560 n6 on this basis. Absent evidence to the contrary, this office has no reason to question the veracity of 911 Dispatch in this regard. Although there may be occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records, consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented as 911 Dispatch has offered a credible explanation for the nonexistence of the requested records.
Because the specified dispatchers are not full-time public employees, and therefore do not qualify as "law enforcement telecommunicators" as required to trigger the application of KRS 15.550 and KRS 15.560, it stands to reason that 911 Dispatch does not possess any records which are responsive to Ms. Hall's request for copies of records attesting to their completion of the requisite training. That being the case, 911 Dispatch satisfied its statutory burden of proof by notifying Ms. Hall in writing that no responsive records exist, and offering a credible explanation as to why no such records were created.
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.
Mary Lou Hall168 Highview DriveTaylorsville, KY 40071
Russell CranmerSpencer County 911 Dispatch 18 East Main StreetTaylorsville, KY 40071
Ruth HollanSpencer County AttorneyP.O. Box 395Taylorsville, KY 40071-0395
Footnotes
Footnotes
1 As consistently recognized by this office, the Open Records Act "addresses requests for records, not requests for information." 00-ORD-145, p. 2. To the extent that Ms. Hall requested information such as dates upon which dispatchers became certified, 911 Dispatch could have properly denied her request on this basis. In 00-ORD-145, the Attorney General reiterated this longstanding principle:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Id., p. 2, citing 95-ORD-131. In short, the purpose of the Open Records Act "is not to provide information, but to provide access to public records that are not exempt by law." Id., p. 3, citing OAG 79-547.
2 Although 911 Dispatch does not address Ms. Hall's claim that it failed to respond upon receipt of her request dated April 20, 2005, the request is a more specific variation of Item No. 2 of her original request. With respect to duplicative requests for public records, the Attorney General has held that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 99-ORD-107. Common sense dictates that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Id. In such cases, the agency must invoke KRS 61.872(6) and provide an explanation of how the exception applies to the records withheld at a minimum. To the extent that Ms. Hall's second request was repetitive, 911 Dispatch was not required to honor it, but was required to respond. Although this office can only speculate as to the reason for the inaction of 911 Dispatch absent evidence of record on this issue, 911 Dispatch presumably felt that further response was unnecessary since the requests were so similar. Public agencies obviously cannot honor a request for records which do not exist, as is the case here, nor can agencies elect a course of inaction, as 911 Dispatch apparently did.
3 Pursuant to KRS 15.530(5):
"Law enforcement telecommunicator" means any full-time public employee, sworn or civilian, whose primary responsibility is to dispatch law enforcement units by means of radio communications for an agency that does not utilize the Criminal Justice Information System and is part of or administered by the state or any political subdivision [.] (Emphasis added).
Contrary to the assertion by 911 Dispatch on appeal, the fact that 911 Dispatch "does not access the CJIS," standing alone, does not remove the dispatchers employed there from the definition of "law enforcement telecommunicator, " (whereas part-time status does) and every person who is employed, "after June 24, 2003, as a law enforcement telecommunicator by any law enforcement agency in this state shall forfeit his position as such unless, within twelve (12) months from the date of his employment, he satisfactorily completes a basic training program and is awarded a certificate attesting thereto." KRS 15.560(1). "No person shall receive an official appointment on a permanent basis as a law enforcement telecommunicator unless the person has previously been awarded a certificate by the commissioner attesting to such person's satisfactory completion of a non-CJIS telecommunications academy." Id. However, the "Telecommunications Academy for Non-Terminal Agency" course "does not count toward the 40 hour annual training requirement for POPS and KLEPF credit." 103D-050. Pursuant to KRS 15.540(6): "'Law enforcement telecommunicator basic training program' means a forty (40) hour basic training program [defined at KRS 15.550] approved by the Kentucky Law Enforcement Council. " A copy of this certificate is presumably the "certification" to which Ms. Hall is seeking access relative to the named dispatchers.
In addition, KRS 15.560(2) provides that all law enforcement telecommunicators, "whether originally employed before or after June 24, 2003, shall successfully complete each calendar year an in-service training course, appropriate to their job assignment and responsibility, of at least eight (8) hours duration at a school certified or recognized by the Kentucky Law Enforcement Council. " KRS 15.565 contains the requirements for persons employed as CJIS telecommunicators which clearly do not apply on the facts presented.
4 Because 911 Dispatch has now provided Ms. Hall with a copy of this responsive record, any related issues are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that if access to public records for which inspection or copying is sought is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Absent evidence to the contrary, this office assumes that 911 Dispatch has provided Ms. Hall with a copy of Mr. Cranmer's "certification. " Accordingly, this office must decline to issue a decision relative to that record.
5 As consistently recognized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5, a copy of which is attached hereto and incorporated by reference, for further analysis of this issue. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.