Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Police ("KSP") violated the Open Records Act in its disposition of a request for records regarding citations for vehicles passing school busses that were loading or unloading. For the reasons stated below, we find that KSP committed a procedural violation of the Act in its response to the request for records.
In his request of November 9, 2018, Mr. Noel Botts ("Appellant") made the following requests:
1. Please provide any and all citations issued for vehicles passing school busses when the bus was loading or unloading passengers for the last three (3) years.
2. Please provide any and all documents and information regarding the outcome of the citations issued in Request No. 1 above.
3. Please provide any and all documents and information for all persons not charged or who had charges dropped for passing a school bus while it was loading or unloading passengers.
By letter dated November 16, 2018, KSP responded to the request, stating in substantive part:
Due to the storage location of this file, it cannot be determined at this time if records responsive to your request are in existence and possessed by Kentucky State Police. However, I have initiated a search to determine if records responsive to your request are in existence and possessed by the Kentucky State Police. The information will be released to you, to the extent the records are in existence and possessed by Kentucky State Police and required under the Kentucky Open Records Act, upon completion of the review. The records or a letter stating the status of your request should be mailed to you on or before December 16, 2018.
Appellant filed his appeal to this office, stating that "[t]he response and time to provide the requested documents is unreasonable given that the records should be computerized and should be readily available."
KSP responded to the appeal on December 4, 2018, stating that a response and CD had been sent that same day to Appellant and that the CD contained an electronic database responsive to the request for copies of citations. 1 As to the other two requests, KSP advised Appellant that a search of KSP records had been conducted and no records were found as KSP does not track outcomes of such citations. KSP recommended that Appellant contact the Kentucky Administrative Office of the Courts "as they are the agency that would possess documents and/or records related to the outcome of citations, if the records do exist." 2 KSP further provided Appellant with the procedures for submitting an open records request to the Kentucky Administrative Office of the Courts.
Delay in Providing Records : In its response to the Open Records request, KSP did not give a detailed explanation of the cause for further delay, stating only that "[d]ue to the storage location of this file, it cannot be determined at this time if records responsive to your request are in existence and possessed by Kentucky State Police." KRS 61.872(5) "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmonson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3. Merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.' Lexington-Fayette Urban Cty. Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3. KSP's failure to provide a legitimate detailed explanation of the cause for delaying access for one month constituted a procedural violation of the Open Records Act.
Nonexistent Records : KSP stated that it did not have records responsive to the second and third requests. 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 the absence of legal authority requiring that such records should be in KSP's possession, we see no need to require further explanation of the requested documents' nonexistence. Accordingly, we find no violation of the Open Records Act by KSP in not providing records responsive to Appellant's second and third requests.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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