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 Louisville Metro Police Department and the Office of the Jefferson County Clerk
relative to the opens records requests of Gerald M. Tucker for a "case history" identified by a copy of Mr. Tucker's Arrest Warrant for Case No. 04-F-008118 violated the Open Records Act. For the reasons that follow, we find that the actions of the Department did not violate the Act.
On August 29, 2006, Mr. Tucker initiated this appeal to the Attorney General asking this office to determine whether the actions of the two agencies violated the Open Records Act.
After receipt of Notification of the appeal and a copy of the letter of appeal and Mr. Tucker's request letters, Tricia Gray, Executive Administrator, Office of Jefferson County Clerk, provided this office with a response to the issues raised in the appeal. In her response, Ms. Gray advised that the Clerk's office had received Mr. Tucker's request on August 25, 2006 and had mailed a response to him on August 28, 2006, advising that his request letter could not be accommodated as that office did not have the requested records.
In addition, after receiving Notification of the appeal, Kris M. Carlton, Assistant County Attorney, by letter dated September 12, 2006, also provided this office with a response to the issues raised in the appeal, advising:
I have forwarded the request for records to the Louisville Metro Police Department. At this time, no records can be located that meet the definition of his request, for a "case history" identified by a copy of Mr. Tucker's Arrest Warrant for Case No. 04-F-008118. The Department will continue to look for such a case for another two weeks, at the end of which time, Mr. Tucker will be informed whether such a record exists within the Police Department. It also is noted that Mr. Tucker may wish to attempt to locate a case file from the office of the Jefferson County Circuit Court Clerk, or from the Commonwealth's Attorney's Office, both of which would be considered additional custodians of record for public records of this nature.
Subsequently, Ms. Carlton provided this office with a copy of the Police Department's September 25, 2006 supplemental response to Mr. Tucker, in which he was advised:
A more thorough search has been done to attempt to locate the records you have identified. However, it has been confirmed that such records do not exist in the custody of the Louisville Metro Police Department. You may wish to try the office of the Commonwealth's Attorney, or the Office Jefferson County Circuit Court Clerk, neither of which is a part of the Louisville/Jefferson County Metro Government.
We are asked to determine whether the actions of the Police Department and the Office of the Jefferson County Clerk were in violation of the Open Records Act. For the reasons that follow we conclude, that the actions of the agencies were proper and did not constitute a violation of the Act.
The responses of the Police Department and the Office of the Jefferson County Clerk indicates that a thorough search was made for records responsive to Mr. Tucker's request and, as noted above, concluded that no such records exist. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Police Department and the Office of the Jefferson County Clerk discharged their duty under the Open Records Act by affirmatively advising Mr. Tucker that they did not have a copy of the requested "case history" records. 99-ORD-150.
Moreover, 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.
The Police Department advised Mr. Tucker that he may wish to attempt to locate the records he seeks from the office of the Jefferson County Circuit Court Clerk, or from the Commonwealth's Attorney's Office, both of which would be considered additional custodians of record for public records of this nature. This was in compliance with the requirements of KRS 61.872(4) ; 03-ORD-225. Accordingly, we find no violation of the Open Records Act in this regard. If he has not already done so, Mr. Tucker may wish to submit a request for the records he seeks from these agencies.
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.