Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Steve Wallace in connection with his attempts to obtain documents from the Kentucky State Police.
This office has not been furnished with a copy of Steve Wallace's request to the Kentucky State Police.
However, in a letter to Mr. Wallace dated January 11, 1994, Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, stated in part as follows:
I have previously sent you copies of all the laboratory examinations and chain of custody forms performed by the Kentucky State Police Forensic Laboratory. As I have stressed before, this case was investigated by the Hopkinsville Police Department and a copy of their investigation would have to be obtained from the investigating agency.
Any notes compiled by the laboratory examiner, if there were any, would be exempt from the Open Records Law pursuant to KRS 61.878(1)(h) which exempts preliminary drafts, notes, etc. This applies to your request in that if the examiner had any handwritten notes, etc., they would be exempt from inspection by this statute.
In his letter of appeal to this office, received February 8, 1994, Mr. Wallace states in part in regard to what Ms. Smith has sent him:
In her letter she stated that she has sent me all the laboratory examinations, which is untrue. The only thing she sent me were the results, but the results are nothing without the mandatory tests performed to achieve these results, which therefor make the notes taken an equal part of the results, and not preliminary drafts, notes, etc.
The undersigned Assistant Attorney General talked by telephone with Ms. Diane H. Smith on the afternoon of February 23, 1994, in an attempt to learn more about the records in question. Ms. Smith specifically stated that there are no laboratory notes in connection with the materials requested from the Kentucky State Police by Steve Wallace.
When presented with a request to inspect public documents a public agency must address two basic questions: Whether it has the materials requested and, if it does, whether those records are subject to public inspection. Ms. Smith stated in writing that copies of all the laboratory examinations and chain of custody forms preformed by the Kentucky State Police Forensic Laboratory have been sent to Steve Wallace. Ms. Smith stated over the telephone that there are no laboratory notes relative to the materials requested by Steve Wallace from the State Police.
Under the Open Records Act Ms. Smith's responses were proper in that she has furnished copies of those documents in the custody of the Kentucky State Police at the time the requests were made. She obviously cannot provide copies of documents which her organization does not have or which do not exist. See 94-ORD-18, copy enclosed. She has stated that there are no laboratory notes and this office has no reason to doubt the validity of her statement relative to the nonexistence of the material requested. See 94-ORD-11, copy enclosed.
Steve Wallace may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the Kentucky State Police, pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent actions.