Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in the disposition of Ricky Fulcher's May 4, 2006, request for records relating to a July 24, 2001, incident that occurred at Mr. Fulcher's residence and apparently resulted in his arrest and conviction. For the reasons that follow, we find that KSP's disposition of Mr. Fulcher's request was only partially consistent with the substantive provisions of the Act. Given the paucity of evidence in the record on appeal, we make no finding on KSP's compliance with the procedural requirements of the Act.
In a records application directed to Kentucky State Police Post 3, Bowling Green, Kentucky, Mr. Fulcher requested copies of:
1) Communication logs pertaining to a call on 7/24/01 reporting a subject with a gun in Russellville, Logan County;
2) Any and all dispatch/ communication logs pertaining to alleged drug activity at 306 Gasper River Road on 7/25/01, to include the dispatch of the Haz Mat team;
3) All records pertaining to the arrest on 7/24/0-1 . . . of Johnny Edward Finn, Matthew Thomas Jones, Kendi N. Finn, Andrea M. Freeman, Charles Jason Anderson, Jody Andrew Cherry, and Ricky Lee Fulcher;
4) Kentucky Sate Police cases 03-01-1059 and 1060, to include all warrants and affidavits in support of said warrants;
5) The complete laboratory files for laboratory report numbers 01-1-4143, 01-1-04148, and 01-1-03369; and
6) NCIC reports pertaining to the above referenced arrest [.]
Having received no response to his request, Mr. Fulcher initiated this appeal on May 16, 2003.
In correspondence directed to this office following commencement of Mr. Fulcher's appeal, Assistant General Counsel Roger Wright defended KSP's position. He explained that the subject "request was first brought to the attention of the Custodian [of records] upon receipt of this appeal," acknowledging that KSP "has been unable to determine if the request was received by KSP Post 3, and not properly forwarded to the Custodian's attention." Nevertheless, Mr. Wright continued, KSP issued a preliminary response to Mr. Fulcher on May 30, 2006, and his "request is now being processed." Mr. Wright provided this office with a copy of the May 30 response.
In that response, Records Custodian Mary Ann Scott advised Mr. Fulcher that KSP would be unable to honor items one and two of his request. She explained that "due to KSP retention schedules at the time of this incident, the communication and dispatch log entries are no longer in existence." In support of KSP's position that the agency cannot furnish access to a record that it does not have, Ms. Scott cited a series of open records decisions dating from 1983. Ms. Scott also denied item 6 of Mr. Fulcher's request, relying on the confidentiality provision for NCIC entries found at KRS 17.150(4) and explaining that "centralized criminal history records are not subject to public inspection. " With reference to items three through five of his request, she indicated that responsive records would "be forwarded to the Legal Branch for review and redaction consistent with the statute" and that KSP would release those records to him "to the extent required under the Kentucky Open Records Act, upon completion of our review." It is this response that we find problematic.
We find no error in KSP's denial of items one and two of Mr. Fulcher's request. As Ms. Scott correctly notes, this office has long recognized that a public agency cannot produce for inspection and copying records that no longer exist. We will not unnecessarily lengthen this decision with a recitation of this nearly axiomatic rule of law, but will instead refer the parties to 04-ORD-005, a copy of which is attached hereto and incorporated by reference. Our review of the applicable records retention schedule and series, a copy of which is also enclosed, confirms KSP's position. Radio logs appear in Series 00151 of the Justice Cabinet -- State Police Retention Schedule, and must be retained at the agency for two years after which they may be destroyed. Because KSP's inability to produce the requested records stems from proper records management practices, we find that this denial warrants no additional inquiry and is instead entirely consistent with the Open Records Act, and in particular, KRS 61.8715. 1
Similarly, we find no error in KSP's denial of Mr. Fulcher's request for NCIC reports pertaining to arrests arising out of the incident. In support of its denial, KSP properly invokes KRS 17.150(4) pursuant to which:
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice Cabinet. Criminal justice agencies shall retain the documents and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
Denial of access to centralized criminal history records maintained by KSP in the NCIC database has been approved in a series of open records decisions dating back to 1976. See, e.g., OAG 76-604; OAG 77-28; OAG 82-288; OAG 88-63. Compare, 00-ORD-206; 05-ORD-230. We see no reason to depart from this line of open records decisions, and, accordingly, we affirm KSP's denial of this portion of Mr. Fulcher's request.
Nevertheless, we find no support in existing legal authority for KSP's indefinite postponement of final disposition of items three, four, and five of Mr. Fulcher's request relating to arrests, investigative reports, warrants, and laboratory files. In its May 30 response, KSP notified Mr. Fulcher that these requests were being "forwarded to the Legal Branch for review and redaction consistent with the statute," and would be released to him, "to the extent required under the Kentucky Open Records Act, upon completion of [the Legal Branch's] review." On this precise issue, the Attorney General has observed:
KRS 61.880 sets forth the duties and responsibilities of a public agency in responding to a request received under the Open Records Act. Subsection (1) of that provision requires that the agency, upon receipt of a request, respond in writing to the requester within three business days of receipt of the request, and produce the requested records for inspection or copying or deny access on the basis of one or more of the statutory exceptions. The only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three business days and to provide the requester with timely access to the requested records."
94-ORD-156, p. 10. Although "the burden on the public agency to respond in three working days is, not infrequently, an onerous one, . . . [n]othing in the statute permits the agency to indefinitely postpone or delay this statutory deadline." Id., p. 9.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
KSP's response to items three, four, and five of Mr. Fulcher's request was deficient insofar as it failed to provide a detailed explanation of the cause for further delay and to state the earliest date on which the records would be available. A brief reference to the necessity of conducting a review of the requested records does not satisfy the requirement of a "detailed explanation." The omission of a statement of the earliest date on which the records will be available renders the response defective. If it has not already done so, KSP must immediately advise Mr. Fulcher when he can expect to be notified that the requested records are available. In so doing, KSP should be guided by the observation that "the value of information is partly a function of time,"
Fiduccia v. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999) cited in 01-ORD-140, p. 3, and 04-ORD-063, and the awareness that KRS 61.872(5) requires a statement of the earliest date the records will be available.
Given the nonfinal nature of KSP's disposition of items three, four, and five of Mr. Fulcher's request, we cannot finally assess the propriety of its actions under the Open Records Act. If, upon receipt and review of any records disclosed in response to these portions of his request, Mr. Fulcher questions KSP's position, he may initiate a new appeal to this office on the narrow issue of KSP's final disposition of these items of his request.
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.
Footnotes
Footnotes
1 KRS 61.8715 thus provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194A.146, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.