Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the State Medical Examiner ("the Office") violated the Kentucky Open Records act in its disposition of Suzanne D. Cordery's December 17, 2009, request to inspect and copy "[a]ll police reports and police investigations in [the Office's] possession, including witness statements and records of interviews pertaining to the death of Terry Hawkins." We conclude that the Office did not substantively violate the Act.
Ms. Cordery's December 17 request included a list of records including the item quoted above. At the end of the list, she added: "Please inform me whether the above described records exist. Please inform me whether you possess each of the described records. Please inform me of any copy costs." On December 22, 2009, Administrative Specialist III Deanna Douthitt provided Ms. Cordery with 19 pages of copied records, which did not include the police records she had specified. Ms. Douthitt's letter did not specify whether the Office possessed those records.
On January 5, 2010, Ms. Cordery sent Ms. Douthitt a follow-up letter, contesting the fee of $ 1.00 per page that the Office charged, and also "specifically requesting [the Office] to disclose ? whether it has, or does not have" the police records. Ms. Douthitt responded on January 7, 2010, by citing the fee schedule promulgated in 500 KAR 12:010, under the authority of KRS 72.260, which sets a fee of $ 1.00 per page for written records of the Medical Examiner's Office. In regard to the police records, she stated:
This office is not the custodian of the records described and is thus unable to accommodate your request. The law enforcement agency that conducted the investigation should be contacted to request copies of these records.
Ms. Cordery initiated this appeal on February 19, 2010. She no longer appears to contest the fee charged for the records she received, but asserts that she was unlawfully denied inspection of the police records because they are "in possession of or retained by" the Office within the meaning of KRS 61.870(2), which defines "public records," and thus are subject to public inspection.
The January 7 letter is ambiguous as to whether the Medical Examiner's Office possesses copies of the police records. It could easily be seen as arguing that the Office is merely a "casual possessor" of the records and they must be sought from the agency that generated them, an argument the Attorney General has rejected in previous appeals. See, e.g., 06-ORD-166, p. 3 (describing the concept of casual possession as "all but discarded"). The response to this appeal, however, reveals that the agency is not taking that position. On February 26, 2010, Staff Attorney Jonathan S. Milby of the Justice and Public Safety Cabinet advised that the Medical Examiner's Office "does not possess, and never did possess, any of the investigative materials that Ms. Cordery has requested."
We find no substantive violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, the Office did not affirmatively state this to be the case. Its initial response therefore did not fully discharge the public agency's duty under the Act as to the police records. See 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and ? it is incumbent on the agency to [state their nonexistence] in clear and direct terms? While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient"). By failing to make a clear and direct response to this portion of Ms. Cordery's request, the Office committed a procedural violation of KRS 61.880(1), which provides that a public agency "shall notify in writing the person making the request, within the three (3) day period, of its decision" regarding the records in question.
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 proceedings.
Suzanne D. Cordery, Esq.Deanna DouthittJonathan S. Milby, Esq.