Opinion
Opinion By: Jack Conway, Attorney General; Amy L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Park Hills Police Department violated KRS 61.880(1) in failing to respond in writing, and within three business days, to Travis Bush's June 16, 2009, request for a copy of "[a]ll information for Cit # 3D0252581-1, including police report [and] statement by witness John Eddy, PHPD." The Department mitigated this violation, upon submission of Mr. Bush's appeal, by releasing a copy of the computer entry relating to the citation and explaining that the "citation itself is no longer on file...[because it] was issued on March 15, 2003, and has since been destroyed pursuant to proper records retention practices governed by Records [Series] L4679 of the General Schedule for Local Records which states that these records may be destroyed after two years." In support, the Department attached the affidavit of Police Clerk Charleen Fangman. 1
We find that 08-ORD-076 and 06-ORD-088, copies of which are attached hereto and incorporated by reference, are dispositive of the issue on appeal. Although they arise under different facts, both decisions affirm the propriety of agency denial of a request for a record that has been destroyed according to proper records management practices. Compare, 08-ORD-200 (holding that the City of Elsmere violated the Open Records Act in failing to articulate its inability to produce uniform citations in terms of the proper records management practices).
While we urge the Department to review KRS 61.880(1) to insure that future responses conform to the Open Records Act, we find no error in its ultimate disposition of Mr. Bush'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.
Distributed to:
Travis BushSergeant John R. EddyRobert A. Winter, Jr.
Footnotes
Footnotes
1 In her affidavit, Ms. Fangman states that the "record was destroyed by fire sometime in the fall of 2008." We assume from this statement that destruction was intentional rather than inadvertent, and that proper notice of records destruction was given to the Kentucky Department for Libraries and Archives per KRS 171.170. See., e.g., 08-ORD-076 and 02-ORD-149 (enclosed). If not, the Department should take immediate steps to rectify this omission by contacting the Public Records Division of KDLA at (502) 564-8300.