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 Kentucky State Police (KSP) violated the Open Records Act in the disposition of Chris Henson's May 5, 2005, request for "Offense/Incident Reports that you have on file . . . from the time periods of January 1, 2001 - May 6, 2005" against "Sharon Ann Dean, A.K.A. 'Ms. Sharon H. Dean'" and/or "Michelle Anne Price, A.K.A. 'Ms. Michelle A. Christofield', A.K.A. 'Ms. Michelle H. Eversole'" wherein either named person is listed as a "complainant/victim" or "suspect/subject." For the reasons that follow, we find that, with the exception of a procedural deficiency, the KSP's response affirmatively advising Mr. Henson that the agency did not have records responsive to his request, did not violate the Act.
In his letter of appeal, dated May 16, 2005, Mr. Henson indicated that as of that date he had not received a response to his request from the KSP.
After receipt of notification of the appeal and a copy of Mr. Henson's letter of appeal, Natalie Lewellen, Staff Attorney, KSP, provided this office with a response to the issues raised in the appeal. In her response Ms. Lewellen advised:
While KSP continually works to improve delivery of open records responses in compliance with the Kentucky Open Records Act, it should be noted, however, that the May 5, 2005 letter of request Mr. Henson attaches to his appeal to the Office of the Attorney General is incorrectly addressed to the KSP Official Custodian of Records. The proper address is 919 Versailles Road, Frankfort, KY 40601, not the 1250 Louisville Road address listed by Mr. Henson. As such, this office had not yet received Mr. Henson's May 5, 2005 letter of request for records before such request was attached to Mr. Henson's May 16, 2005 letter of appeal to the Office of the Attorney General.
Upon receipt of this appeal, this office contacted the KSP Records Division for a search of arrest records/Uniform Offense Reports "written up by a trooper against the people" named in Mr. Henson's May 5, 2005 request letter. According to the Records Division, there are no citations naming either Ms. Sharon Ann Dean or Ms. Michelle Ann Price. Mr. Henson may wish to direct his requests to local police agencies.
Ms. Lewellen's letter to this office indicates that a copy of her response was copied to Mr. Henson.
In a reply letter, Mr. Henson complains that he was told by KSP (Post 6) that the main repository for all (KSP) written records is the 1250 Louisville Road, Frankfort, KY address and all written records must go there. In its response to the letter of appeal, KSP advised that the correct address for the Official Custodian of Records was 919 Versailles Road, Frankfort, KY 40601
When the request was received at the 1250 Louisville Road address, the agency should have timely responded to Mr. Henson either by notifying him as to the proper address to submit his request or by making arrangements to forward the request to the appropriate custodian for a timely response. KRS 61.872(4) and (5). Failure to respond to an open records request in writing within three business days after its receipt is a procedural violation of KRS 61.880(1) and the Open Records Act.
Addressing the substantive issues, the KSP, in its response to the issues on appeal, with a copy to Mr. Henson, advised that the agency had no records responsive to his request. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In its response, the KSP advised Mr. Henson that it did not have records responsive to his request. 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.