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 Pulaski County Sheriff's Department violated the Open Records Act in the disposition of Danny New's September 15, 2006, request for a copy of "any and all dispatch radio logs from the Kentucky State Police that was made to the Pulaski County Sheriff's Dept. on January 29, 2005, in regards to Danny Lee New that pertain to any arrest warrants, etc." Having received no response to his request, Mr. New initiated this appeal. For the reasons that follow, we find that the Pulaski County Sheriff's Department's disposition of Mr. New's request was procedurally deficient and substantively correct only if the Department confirmed through a search of its own logs that it received no communications from KSP, relating to Danny Lee New, on January 29, 2005.
In correspondence directed to this office following commencement of Mr. New's appeal, Pulaski County Sheriff Todd Wood advised that the Department does "not maintain radio logs from the State Police." Although he did not provide this office with a copy of the Department's response, Sheriff Wood indicated that his office did, in fact, respond to Mr. New's request on September 28, 2006.
It is the decision of this office that the Pulaski County Sheriff's Department violated KRS 61.880(1) in failing to respond to Mr. New's request in a timely fashion. That statute 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.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute 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; 05-ORD-150.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receipt of an open records request. Mr. New's request was dated September 15, 2006, and the Department's response was dated September 28, 2006. The Department offered no explanation for this multi-day delay in responding to Mr. New's request. Its failure to issue a timely written response constituted a violation of the Open Records Act, specifically KRS 61.880(1). Moreover, because the Department did not furnish this office with a copy of its written response, it is unclear whether the response provided the detailed and particular information required by KRS 61.880(1) as construed in Edmondson v. Alig, above. These requirements, the Attorney General has often observed, "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; 02-ORD-187; 04-ORD-114. We urge the Pulaski County Sheriff's Department to review the cited provision to insure that future responses conform to the Open Records Act.
Our review of Mr. New's request and the Department's response further suggests that the Department may have read the request too narrowly. Mr. New requested copies of entries in the Departmental dispatch logs documenting communications from the Kentucky State Police on January 29, 2005, that related to him, not "radio logs from the State Police." The Department's response suggests that it construed it as a request for KSP dispatch logs in the Department's possession. If this is the case, we believe it is incumbent on the Department to review its own dispatch logs to ascertain whether it received any transmissions from KSP on January 29, 2005, relating to Mr. New, that are documented in that log. 1 Should this review disclose responsive entries, it is then incumbent on the Department to release copies of them to Mr. New, 2 or to invoke one or more of the exceptions codified at KRS 61.878(1)(a) through (n) and briefly explain the application of the exception(s) to the entries withheld. If the Department properly construed Mr. New's request as a request for entries documenting transmissions to or from KSP appearing in its own dispatch log, and, having searched same, discovered no responsive records, its open records duties are fully discharged, and we find no error in its denial of that 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 A review of the Local Government General Records Retention Schedule issued by the Kentucky Department for Libraries and Archives discloses that the retention period for Record Series L4698, Radio Run Cards, is two years. Radio run cards "document the dispatches that come into the law enforcement agency," and are the functional equivalent of radio dispatch logs. The radio dispatch logs for the date at issue should therefore still exist.
2 Upon receipt of reasonable copying charges not to exceed ten cents per page and the cost of postage.