Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Bullitt County Central Dispatch violated the Kentucky Open Records Act in denying the request of Eric Tinnell for one copy of "the dispatch from Dan Patchin on February 24, 2004, received at 18:58 and cleared at 21:58." Although the BCCD violated KRS 61.880(1) in failing to respond in writing to Mr. Tinnell's request within three business days, the BCCD has since advised Mr. Tinnell in writing that a search revealed no records responsive to his request as framed and requested further information in order to assist Mr. Tinnell; nothing more is required.
By letter directed to Sheperdsville Police Department Chief Ronald W. Morris on August 8, 2005, Mr. Tinnell requested access to the specified dispatch record. In a timely written response, Chief Morris advised Mr. Tinnell to submit his request to "Bullitt County Central Dispatch" as the SPD is not the custodian of such records; Chief Morris also provided Mr. Tinnell with the address of the BCCD (911 Walnut Street, Sheperdsville, Kentucky, 40165) in compliance with KRS 61.872(4). 1 Accordingly, Mr. Tinnell directed his request to "Bullitt County Dispatch" on August 16, 2005. Having received no response to his request, Mr. Tinnell initiated this appeal by letter dated September 27, 2005.
Upon receiving notification of Mr. Tinnell's appeal from this office, James T. Johnson, "Bullitt County E911 Director," responded on behalf of BCCD. Although Mr. Johnson reviewed the logs for entries from the specified date and time as well as the named officer, Mr. Johnson was "unable to find a log that pertains to [Mr. Tinnell] or the officer that [Mr. Tinnell] named [with the information] provided." However, Mr. Johnson offered to search further if Mr. Tinnell could provide additional information that might assist him in locating any responsive records. To clarify, a request for clarification or more precise information is not properly characterized as a denial. 05-ORD-137; 04-ORD-198; 04-ORD-193; 03-ORD-067. With the exception of a procedural deficiency, the response of the BCCD is consistent with the Open Records Act.
As a public agency, the BCCD is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount to [] substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule are found at KRS 61.872(4) and (5), neither of which the BCCD invoked here. 02-ORD-165, p. 3.
As the Attorney General has consistently observed, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Failure to respond in a timely and proper fashion, as the BCCD initially did here, constitutes a clear violation of KRS 61.880(1). In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id. To avoid future violations, the BCCD should review this provision before responding to requests submitted pursuant to the Open Records Act. 2
That being said, 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. A public agency such as the BCCD obviously cannot produce for inspection that which it does not have. 02-ORD-118, p. 3. To the contrary, the right 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. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently 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 indicating that no responsive records exist as the BCCD 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 access on this basis, it is "not incumbent on this office to conduct an investigation in order to locate 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 clarify, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a), and this office is without authority to deviate from that statutory mandate. In other words, this office is not "empowered to go beyond the written record to determine whether public employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
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; 03-ORD-059; 00-ORD-120; 98-ORD-47; 97-ORD-17; 94-ORD-140. When, as is the case here, the agency denies that any records responsive to the request as framed were ever created and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83; 99-ORD-108.
Because the record is devoid of evidence establishing that a dispatch record matching the description provided exists, the position of the BCCD that no such record was ever generated is entirely credible. Assuming that the BCCD made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record reflects, the BCCD fully complied with the Open Records Act, regardless of whether the search yielded any results, by notifying Mr. Tinnell that no responsive records were found. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. Because the BCCD is necessarily unable to produce for inspection or copying records which do not exist, and has complied with the statutory mandate to notify Mr. Tinnell of that fact in writing, nothing more is required.
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.
Eric Tinnell, # 182189Luther Luckett Correctional Complex, 7A-DP.O. Box 6LaGrange, KY 40031
Todd JohnsonDirector, Records Custodian Bullitt County Central Dispatch P.O. Box 768Sheperdsville, KY 40165
Walter A. SholarCounty AttorneyCourthouse, 300 S. Buckman StreetP.O. Box 1446Sheperdsville, KY 40165-1446
Footnotes
Footnotes
1 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
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2 Although the BCCD belatedly complied with this provision, and has exhibited a commendable spirit of cooperation, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the original denial.
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