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 actions of the Oldham County Central Dispatch (OCCD) relative to the open records requests of Paul J. Flinker for "[a]ny communications or reports either paper or electronic involving the following person, their social security number, drivers license number, vehicle or vehicle license plate during the time period January 1, 2003 to June 31, 2004," violated the Open Records Act. For the reasons that follow, we find that the agency's actions were consistent in part and inconsistent in part with the Act.
In his letter of appeal, dated October 4, 2004, Mr. Flinker stated that he had submitted his request to OCCD twice and had yet to receive a response from the agency.
After receipt of notification of the appeal and a copy of the letter of appeal, Todd McKay, Director, OCCD, provided this office with a response to the issues raised in the appeal. In his response, Mr. McKay stated that the agency's delay in responding to Mr. Flinker's request was due to an oversight. He further advised that he had responded to Mr. Flinker's request on October 11, 2005. In addition, Mr. McKay indicated he had a subsequent telephone call with Mr. Flinker to confirm receipt of the response and to answer any questions he might have regarding the response. Along with the response to this office, Mr. McKay provided a copy of his October 11, 2005, response to Mr. Flinker. In his letter to Mr. Flinker, he advised, in relevant part:
This correspondence is in response to your Open Records Request in regards to the above referenced person.
I have queried the history log on the LINK/NCIC data base using all the information provided in your request including the time frame. Each piece of information was queried individually, as well as using the combination of name and date of birth. The result of the research indicates that the Oldham County Dispatch Center did not run any inquiries on the above referenced individual.
I have also researched the data bases of the computer aided dispatch system currently in use at the Oldham County Dispatch Center, and again I was unable to locate any instances where this individual, or any other information provided was utilized in any fashion.
I have not researched master tape recordings for the time period listed due to the length, and vagueness of the time frame. Researching master tapes for the time period would require listening to approximately 13,000 hours of tape to cover the nine telephone lines, and three primary radio channels utilized at the dispatch center. The amount of time required to perform this type of research would place a near impossible burden upon the center, and would take an extremely long time to complete.
The OCCD committed a procedural violation of the Open Records Act when it failed to timely respond to Mr. Flinker's requests within three business days after their receipt. Specifically, KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. The OCCD's failure to comply with the requirements of KRS 61.880(1) constituted a procedural violation of the Open Records Act. We remind the OCCD that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request," 93-ORD-125, p. 5, and urge agency officials and employees to review the cited provision to insure that future responses conform to the Open Records Act.
Addressing the substantive issues, Mr. McKay advised Mr. Flinker that he had found no records responsive to his requests using the information he had provided. The Attorney General has consistently held that a public agency cannot afford a requester access to records which do not exist or cannot be located. 99-ORD-70. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this portion of the agency's response.
Next we address the adequacy of OCCD's search for responsive records. In order to satisfy its statutory burden of proof that an adequate search was undertaken, a public agency must, at a minimum, document what efforts were made to locate the records. In his response to Mr. Flinker, Mr. McKay advised that he had queried the history log on the LINK/NCIC database and the database of the computer aided dispatch system in use at the Oldham County Dispatch System with the information provided in Mr. Flinker's requests and found no responsive records. In our view, the OCCD conducted a search which could be reasonably calculated to locate records responsive to the requests, but that the search was nonproductive. Despite the fact that it yielded no results, this was a search method which could have reasonably been expected to produce the records requested. Thus, we find no violation here.
Finally, we address whether the OCCD sustained its burden of proof relative to its position that additional search efforts would be unduly burdensome. KRS 61.872(6) provides as follows:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In applying KRS 61.872(6), this office articulated the following standard for determining whether a requester has described the records sought with adequate precision:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 92-56; OAG 91-58; OAG 89-81. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for documents.
94-ORD-12, p. 3 (emphasis added); 99-ORD-14, p. 4.
In 99-ORD-14, this office recognized that:
A request for any and all records that contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 5 (emphasis added); 03-ORD-040. Further, we recognized that:
although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, public employees "are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
99-ORD-14, p. 5;
Mr. Flinker's request for any records that reference the "following person, their social security number, drivers license number, vehicle or vehicle license plate" falls into that class of records requests condemned by 99-ORD-14, insofar as he does not identify the records being sought with reasonable particularity or limit the class in any way, such as providing specific dates, incidents, locations, etc., to enable the agency to identify and locate records responsive to the request. See 04-ORD-028. In order to comply with such a request, the OCCD indicated that to research the master tapes for the time period involved, would require listening to approximately 13,000 hours of tape to cover nine telephone lines and three primary radio channels utilized at the dispatch center. Under these facts, we find the OCCD has sustained its burden of proof relative to the claim that additional search efforts would be unduly burdensome and this portion of the response did not violate the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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.
Paul J. FlinkerPublic Advocacy InvestigatorBoone County Public Defender Office8311 U.S. Highway 42Florence, KY 41042
Todd McKay, DirectorOldham County Dispatch 1020 Dispatchers WayLaGrange, KY 40031
Michael Griffin, Chief of PoliceOldham County Police Department1855 N. Highway 393Buckner, KY 40010
John R. FendleyOldham County AttorneyFiscal Court Building100 W. Jefferson StreetLaGrange, KY 40031