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 Louisville Metro Police Department violated the Open Records Act in the disposition of Victor Shelby's request for records documenting the confiscation of $ 3,600.00 from him at the time of his December 19, 2002, arrest by Officers Brad Jeffrey and L. Taylor. For the reasons that follow, we affirm LMPD's disposition of Mr. Shelby's request.
In a response dated September 21, 2007, LMPD Public Information Officer Alicia M. Smiley advised Mr. Shelby that "neither Brad Jeffrey nor L. Taylor is employed by the Louisville Metro Police Department." Continuing, Ms. Smiley observed:
As indicated by the records you enclosed with your correspondence, Brad Jeffrey is employed by the Saint Matthews Police Department and L. Taylor is employed by the United States Secret Service. Consequently the Louisville Metro Police is not the official custodian of records for either of these agencies and has no documents regarding your case.
In closing, Ms. Smiley provided Mr. Shelby with the mailing addresses and telephone numbers of the St. Matthews Police Department and the Louisville Office of the United States Secret Service.
Apparently dissatisfied with this response, Mr. Shelby initiated the instant appeal on September 29, 2007, utilizing a typewritten form that identifies alleged agency violations by "check[]off in the referral box." Mr. Shelby "checked off":
KRS 61.880(1)The Three Days to answer requirement.
KRS 61.874(1)Right to Inspect, but, make Deletions [sic.]
KRS 61.884Any person shall have access to any public record of said [sic].
He did not offer any accompanying explanation. Although it is by no means clear, we assume Mr. Shelby challenges LMPD's purported failure to respond to his request in writing and within three business days, and its ultimate disposition of his request. Having reviewed the record on appeal, we find no evidence supporting the claimed violations.
In supplemental correspondence directed to this office following commencement of Mr. Shelby's appeal, Ms. Smiley elaborated on LMPD's position. She explained that although dated September 16, 2007, Mr. Shelby's request did not reach Louisville Metro Government Department of Finance and the Louisville Metro Police Department until September 21, 2007, as evidenced in the recorded date stamps. Ms. Smiley provided this office with copies of these records in support of LMPD's position. On this basis she asserted that "there is no merit to Mr. Shelby's allegation that the department failed to respond to his request within the three day time period."
Turning to the substantive issues presented by Mr. Shelby's appeal, Ms. Smiley explained:
The department advised Mr. Shelby that the records he was seeking were not maintained by the Louisville Metro Police Department. Further, Mr. Shelby was advised that the proper custodian of records would be the St. Matthews Police Department and the Louisville Office of the U.S. Secret Service. Mr. Shelby was also provided with contact information for both of these agencies.
Again she asserted that, on this basis, "there is no merit to his allegation that the Department violated [Mr. Shelby's] right to inspect records or denied him access to records . . . ." We agree.
Given the paucity of information contained in Mr. Shelby's "letter of appeal," it is unclear whether LMPD's September 21 response to his September 16 open records request reached him on or before September 29, the date on which he prepared it. It is abundantly clear, however, that LMPD responded to his request on the same date on which it was received as evidenced by the date stamps that appear on the request. There is no statutory basis upon which the Attorney General can assign error to a public agency for "delays" in responding to open records requests occasioned by the mail. KRS 61.880(1) requires LMPD to "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 [to] notify in writing the person making the request, within the three (3) day period, of its decision." The record on appeal is devoid of any proof that LMPD failed to strictly comply with this statutory requirement, and we find no procedural error in its disposition of Mr. Shelby's request.
Nor do we find any substantive error in LMPD's disposition of Mr. Shelby's request. As Ms. Smiley correctly notes, the agency promptly advised Mr. Shelby that LMPD does not maintain responsive records because the arresting officers identified in his request are not employed by LMPD. Having done so, LMPD's only remaining duty under the Open Records Act was the duty to furnish Mr. Shelby with the name and location of the custodial agency of the records sought. KRS 61.872(4) thus 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.
LMPD strictly complied with this provision by furnishing Mr. Shelby with the addresses of the St. Matthews Police Department and the Louisville Office of the United States Secret Service, the agencies which employ the arresting officers.
We concur with LMPD in the view that a public agency cannot produce for inspection a record which is not in its custody. This proposition is well-established and the open records decisions confirming it are so numerous that to cite them all would unnecessarily lengthen this decision. Suffice it to say that a public agency is not required to, nor can it logically be required to, produce for inspection records that it does not maintain. See, e.g., OAGs 83-11; 87-54; 91-203; 98-ORD-200; 99-ORD-198. Because the Open Records Act governs access to existing public records maintained by the public agency to which an open records request is directed, the agency cannot, by extension, be required to create records or obtain copies of records over which it cannot legitimately assert custody. LMPD does not predicate its denial of Mr. Shelby's request on the nonexistence of the record, asserting instead that it does not maintain the record requested because its officers did not execute Mr. Shelby's request. In 1994, the Kentucky General Assembly recognized "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.140 to 171.740, dealing with the management of public records. " KRS 61.8715. Although there are occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial when it cannot produce a record for inspection, we do not believe that this appeal warrants additional inquiries. Because LMPD did not execute Mr. Shelby's arrest, or employ the officers who did, it cannot produce a record responsive to his request. We find no error in LMPD's ultimate disposition of Mr. Shelby's 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.
Victor Shelby, # 071531 Alicia M. SmileyMedia and Public RelationsLouisville Metro Police Department633 West Jefferson StreetLouisville, KY 40202
Wm. Dennis SimsPolice Legal AdvisorLouisville Metro Police Department633 West Jefferson StreetLouisville, KY 40202