Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Open Records Act in responding to the open records request of attorney Suzanne D. Cordery. On July 5, 2013, Ms. Cordery wrote to the LMPD to request copies of the following:
(1) All requests for LMPD records made by all persons identifying themselves as Erin Strode and/or Steve Long aka Stephen Long during the period from September 1, 2012 to the present.
(2) LMPD police file, investigative file, and records maintained by Officer J. Linton and/or Detective Walker relative to the police run to 1232 Barrett Avenue on August 23, 2012, to include police notes, records of phone calls and emails to and from Joanna L. Culver, and handwritten and typed property lists generated by Joanna L. Culver.
(3) The LMPD record(s) that identifies by name and address the "listed subject" that is discussed in the Public Narrative NOTES/NARRATIVES section of the Police Report Case # 80-12-067445. For background, previously I received from you a numbered 5-page report per LMPD ORR # 12-1367 (copy is enclosed for your convenience; however, I did not receive the LMPD record that identifies the name and address of this "listed subject."
On July 11, 2013, paralegal Sharon L. King replied:
I am in receipt of the attached request. Due to the scope of the request, please allow up to and including August 8, 2013 to respond. If any records become available any earlier, I will notify you.
We note that at this point a procedural violation of KRS 61.880(1) occurred when a decision regarding the disposition of Ms. Cordery's request was not made within three (3) days exclusive of weekends and legal holidays. The exception in KRS 61.872(5) does not apply:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
There is no indication here that the records were "in active use, in storage or not otherwise available," nor is there any "detailed explanation of the cause" for delay. Cf. 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"). Therefore, the LMPD violated KRS 61.880(1) by its untimely substantive response to the request.
The response was ultimately issued by Ms. King on August 12, 2013. With regard to item 1 of the request, she stated:
Please be advised, based on the information provided, there are no records responsive to this request. LMPD does not maintain a database of individuals submitting open records requests.
In response to item 2, Ms. King indicated:
Officer Jeremy Lynton advises he has no additional records responsive to the request. Officer Lynton is assigned to LMPD Fifth Division, [address and phone number follow].
Finally, in response to item 3, Ms. King stated:
Please be advised, based on the information provided, there are no records responsive to your request. Officer Lynton advises he has no additional records responsive to your request.
Ms. Cordery appealed to this office on September 3, 2013, in part because in regard to item 1 of her request she had apparently been denied access to existing records "because of lack of a database. " In her letter of appeal, she states that on August 14, 2013, she telephoned the LMPD to inquire about her request:
The department contact person acknowledged that she understood that I was requesting open records requests. I was told the records could not be accessed. I stated I had thought she would access the records through her emails like the one sent to ? me to acknowledge my request. As I recall during this telephone conversation I was told the department handled a large number of requests per year; some records or databases were maintained for only one (1) year; and that the department could physically "cull through" the records, but this would take "an additional 6 to 8 weeks, at least."
On the same day, Ms. Cordery received the August 12 letter stating that there were no responsive records and "LMPD does not maintain a database of individuals submitting open records requests."
On September 19, 2013, Assistant County Attorney Brianda A. Rojas responded to this appeal. She stated, in regard to items 2 and 3, that according to Officer Lynton "all information gathered as part of the investigation was provided for in the Incident/Investigation Report" already in Ms. Cordery's possession and "he had no further documents to provide." As for item 1, she does not confirm or deny that the telephone conversation alleged by Ms. Cordery took place, but states as follows:
We agree that this is conflicting information and confusion may have been created as to the existence or nonexistence of the requested documents. Further, Ms. Cordery is correct in her argument that denial of inspection to public records for lack of maintaining a database is not a valid reason for an agency's denial. However, Ms. King informed me that no records responsive to this request exist. Ms. Cordery had previously been given the Incident/Investigation Report along with a copy of the Case Management Tracking which according to Ms. King are the only existing documents responsive to this records request.
Regarding the alleged telephone conversation, we are not capable of resolving disputes of fact about what oral communications may or may not have occurred. In accordance with 40 KAR 1:030, Section 1, we must rely upon the written request and written response as the basis of the record in open records appeals.
We can discern no clear purpose for Ms. King's written statement on August 12, 2013, that "LMPD does not maintain a database of individuals submitting open records requests," though perhaps it was meant as an attempt to explain the delay in responding. On appeal, however, the Department unambiguously affirms that no responsive records exist for item 1 of Ms. Cordery's request. 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. Given the time it took for the LMPD to make its August 12 response, we trust that the agency made a diligent, even if untimely, effort to locate any responsive records. We therefore can find no substantive violation of the Act.
We thus conclude that only a procedural violation occurred in the month-long delay of the LMPD's response. The Department would be well advised to adopt a system for logging open records requests in order to avoid similar delays in the future. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008).
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:
Suzanne D. CorderySharon L. KingBrianda A. Rojas