Request By:
David L. Lewis, # 115628
Kentucky State Reformatory
3001 West Highway 146
LaGrange, KY 40032Chief Jeff Sharpe
Middlesboro Police Department
P.O. Box 601
Middlesboro, KY 40965Robert Bowling
City Attorney
City of Middlesboro
P.O. Box 859
Middlesboro, KY 40965
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Middlesboro Police Department's disposition of David L. Lewis, Jr.'s open records request was procedurally deficient but substantively correct. The record on appeal is devoid of evidence that the Department responded to Mr. Lewis' January 3, 2006, request for "all [records] concerning the death of a 'Mrs. David Lee Lewis, Jr.' (Sheila A. Lewis) all statements! indictment # 93-CR-00001." (Sic.) In failing to respond, the Department violated KRS 61.880(1) requiring a written response to an open records request within three business days of receipt of that request.
In supplemental correspondence directed to this office following commencement of Mr. Lewis' appeal, Middlesboro City Attorney Robert B. Bowling advised that "[a]ll documents, statements, and evidence concerning Mrs. Lewis' death and the subsequent investigation were turned over to the Commonwealth's Attorney to use in the prosecution of Mr. Lewis." Noting that Mr. Lewis' attorneys were provided with this information, Mr. Bowling nevertheless again provided copies of statements and investigative documents which we herewith enclose. In response to Mr. Lewis' letter of appeal, in which he emphasized his need to obtain a copy of the toxicology report following Ms. Lewis' death, Mr. Bowling advised that the Middlesboro Police Department "does not have a copy of [Ms. Lewis'] toxicology report . . . or any toxicology reports related to Indictment No. 93-CR-00001." Substantively, the Open Records Act requires nothing more.
It is the decision of this office that 94-ORD-140, a copy of which is attached hereto and incorporated by reference, is dispositive of the question on appeal. The Middlesboro Police Department cannot produce for inspection a record that is not in its possession. Mr. Lewis produces no specific evidence that the Department withheld the disputed record, and this office is not inclined to question the veracity of the Department when nothing appears in the record on appeal to raise the issue of good faith. We therefore affirm the Department's denial of that portion of Mr. Lewis' request that indirectly implicated Sheila Lewis' toxicology report.
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.