Request By:
Wade McNabb, # 186567
Chief Joseph W. Billman
E.V. Holder, Jr.
Barbara Teague, Acting Director
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Vanceburg Police Department violated the Kentucky Open Records Act in the disposition of Wade McNabb's request for "any and all records that your department may be in possession of relating to an investigation against a one, [sic] Sheri Lynn Oiler . . . where she was charged with 'unlawful transaction with a minor' for selling alcohol to minors while she was a clerk at the Bee-Mart BP in Vanceburg (date unknown)." Although the VPD violated the mandatory terms of KRS 61.880(1) in failing to issue a written response, within three business days of receiving Mr. McNabb's request, specifying whether any such records exist and citing the applicable statutory exception(s) authorizing the withholding of the records (or portions thereof), if any, the VPD substantially complied with KRS 61.872(4) in forwarding Mr. McNabb's request to the custodial agency. Insofar as a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess, the VPD did not violate the Act; however, the limited evidence presented raises a possible records mismanagement issue. Accordingly, the matter is hereby referred to the Department for Libraries and Archives in accordance with Chapter 171 of the Kentucky Revised Statutes for additional inquiry as that agency deems warranted.
By letter dated October 29, 2007, Mr. McNabb submitted his request; Mr. McNabb subsequently initiated this appeal, challenging the failure of the VPD to respond upon receipt of his request. Citing
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), Mr. McNabb correctly asserts that KRS 61.880(1) requires the custodian of records to provide "'detailed and particular information in response to a request for documents.'" Further, if the records "do not exist or cannot be located," a public agency should affirmatively indicate as much and specify what steps were taken to locate any such records. Quoting the language of KRS 61.872(4), Mr. McNabb notes, in conclusion, that the "three (3) day time limit to respond to this request has long expired with no response [whatsoever]."
Upon receiving notification of Mr. McNabb's appeal from this office, Chief Joseph W. Billman forwarded a copy of the undated letter belatedly directed to Mr. McNabb by his agency to this office in response to Mr. McNabb's appeal. 1 According to Chief Billman, the VPD "no longer keep[s] records of mis[demeanor] charges." Consequently, the VPD forwarded Mr. McNabb's "mail to the Lewis Co. Clerk's [O]ffice. This was done by Lt. Tommy Flannigan." Since the VPD "had no record" it "didn't get back with" Mr. McNabb. Insofar as the VPD admittedly failed to issue a written response to Mr. McNabb, within three business days of receiving his request, the VPD violated KRS 61.880(1); likewise, the belated response of the VPD lacks the requisite specificity. See 07-ORD-266.
As long recognized by this office, inaction by a public agency upon receipt of a request is contrary to both the letter and the spirit of the Open Records Act. In our view, the analysis contained in 07-ORD-209 is controlling on the procedural issues presented; a copy of that decision is attached hereto and incorporated by reference. 2 Having already found this response by the VPD procedurally deficient in 07-ORD-266, this office will not belabor the issue. In forwarding Mr. McNabb's request to the Clerk's Office, which apparently maintains the records in question, the VPD substantially complied with KRS 61.872(4), pursuant to which a person to whom a request has been directed must "notify the applicant and shall furnish the name and location of the official custodian of the agency's records" if he or she does not have custody or control of the record(s).
When resolving a dispute under the Open Records Act, our analysis is generally confined to resolving only two questions: Whether the public agency possesses the documents requested, and if so, whether the documents are open for public inspection. Because the VPD has now affirmatively indicated to Mr. McNabb in writing that any records which are potentially responsive to his request are maintained elsewhere, to the extent any exist, and has provided a credible explanation for the lack of possession, this office has no basis upon which to find a substantive violation of the Act. Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, relating to the management of public records.
Pursuant to KRS 61.8715, the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. 94-ORD-121, p. 8. In addressing the "essential relationship" between these chapters, the Attorney General has further observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10. In other words, "the key to records access is effective records management." Id., p. 10.
When viewed in conjunction with Mr. McNabb's description of Ms. Oiler's alleged offense, the necessary implication of Chief Billman's response advising that his agency "no longer keeps records of mis[demeanor] charges," is that Ms. Oiler was under investigation for unlawful transaction with a minor in the third degree, a Class A misdemeanor pursuant to KRS 530.070(2), 3 as opposed to unlawful transaction with a minor in the first or second degree, both of which are felonies. 4 Based upon this assumption, the records at issue fall into Series No. L4663, 5 Investigations other than Felonies File, 6 of the Local Government General Records Retention Schedule , the retention period for which is five years.
In framing his request, Mr. McNabb was unable to specify a time frame during which the specified investigation was conducted or the date(s) on which the underlying incident(s) allegedly occurred; however, files pertaining to investigations other than felonies must be retained by the agency for a period of five years. Here, the VPD has indicated that it "no longer keeps" any such records without citing any basis or authority for taking such action. Because the record on appeal is devoid of evidence to establish that the VPD properly maintained any existing records which are responsive to Mr. McNabb's request or that same were properly destroyed in accordance with the applicable retention schedule, this office is obliged, as in 07-ORD-266, to refer the matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 Chief Billman submitted this letter in response to both of the separate but related appeals which Mr. McNabb filed against the VPD simultaneously, the first of which culminated in 07-ORD-266.
2 With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records or those which it does not possess, the Attorney General refers the parties to pp. 4-7 of 07-ORD-209 for the relevant analysis.
3 In its entirety, KRS 530.070 provides:
(1) A person is guilty of unlawful transaction with a minor in the third degree when:
(a) Acting other than as a retail licensee, he knowingly sells, gives, purchases or procures any alcoholic or malt beverage in any form to or for a minor. The defendant may prove in exculpation that the sale was induced by the use of false, fraudulent, or altered identification papers or other documents and that the appearance and character of the purchaser were such that his age could not have been ascertained by any other means and that the purchaser's appearance and character indicated strongly that he was of legal age to purchase alcoholic beverages. This subsection does not apply to a parent or guardian of the minor;
(b) He knowingly induces, assists, or causes a minor to engage in any other criminal activity;
(c) He knowingly induces, assists or causes a minor to become a habitual truant; or
(d) He persistently and knowingly induces, assists or causes a minor to disobey his parent or guardian.
(2) Unlawful transaction with a minor in the third degree is a Class A misdemeanor.
4 These offenses are described at KRS 530.064 and 530.065, respectively; the degree of felony (A, B, or C) varies depending on the nature of the offense with the former whereas the latter is a Class D felony under KRS 530.065(2).
5 Even assuming that Ms. Oiler was charged with unlawful transaction with a minor in the first or second degree, and the records would therefore fall into Series No. L4662, Felony Investigation Case File, the applicable retention period would be eighty years, meaning the VPD should have possession.
6 At page U4 of the Schedule, the Record Title and Description for this category reads:Series No.Record Title and DescriptionL4663Investigations other than Felonies File (This record seriesincludes open, closed, suspended, active and inactiveinvestigative files for misdemeanors, violations andcitations that are not felonies. Each file may include acopy of the uniform offense report, uniform citationreport, the investigative report, evidence, photos ofcrime scenes, photos of suspects, interviews, statementfrom victims/witnesses/suspects, audio and videotapes, arrest warrants, fingerprints, lab information,criminal history information, correspondence, subpoenas,citations, pleas, sentences and prosecution data).(C) KRS 17.150 (2)
At page U7 of the Schedule, another potentially responsive series, which has a retention period of three years, is described as follows:L4680Complaint and Offense Report (Incident Reports) A.K.A.Incident Report, General Investigative Report andIntelligence Report and is used to document complaintsand to begin the investigative process. May include alltypes of investigations, both felony and misdemeanorsuch as Dog Bite reports). (C) 61.878 (V)