Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question in this open records appeal is whether the City of LaGrange properly responded to Oldham Era editor Kit Millay-Fullenlove's October 29, 1997, request for a copy of the city's internal investigation into LaGrange Police Chief Jeffrey D. Money, including any auditor's reports and agreements between the city and Chief Money. On the same day, Mayor Nancy M. Steele provided Ms. Millay-Fullenlove with "a copy of the agreement which was reached between the City of LaGrange and Jeff Money at the completion of the administration investigation." Mayor Steele did not comment on the existence of investigative or auditor's reports. It is the opinion of this office that although the City of LaGrange's response was procedurally deficient, the city properly declined to honor Ms. Millay-Fullenlove's request for investigative and auditor's reports insofar as no such records exist.
In a follow-up letter to this office dated November 11, 1997, Mayor Steele explained that the only investigative report relating to Chief Money's activities was prepared by the Kentucky State Police in June, 1997. Both the city and Ms. Millay-Fullenlove obtained a copy of the report from the State Police through the Open Records Act.
With respect to the city's investigation into Chief Money's activities, Mayor Steele commented:
Councilman Sam Finley of the City Police Committee commenced an administrative investigation at my request upon completion of the State Police investigation. It is my understanding that Mr. Finley, along with the City's attorneys, reviewed internal policies, interviewed witnesses, and requested that the City's auditors review police department records. All final reports relating to the internal administrative action were verbal, including the auditor's findings and Mr. Finley's report to the City Council.
Thus, Mayor Steele concluded, the only written document generated by the city relative to the investigation was the agreement and release, a copy of which was sent to Ms. Millay-Fullenlove.
We begin by noting that the city's original response to Ms. Millay-Fullenlove's request was deficient. KRS 61.880(1) contains procedural guidelines for public agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This office has consistently held that a public agency's response is deficient under the Open Records Act if it fails to advise the requesting party whether the records identified in his or her request exist. See, e.g. , OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101. At page 3 of OAG 86-38, we construed the obligation of the agency relative to a request to inspect records, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Echoing this view, in AOG 90-26 we categorically stated, "If a record of which I inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
The Kentucky Court of Appeals confirmed this position in
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 857 (1956), holding:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
The Court concluded that a "limited and perfunctory response" to a request did not "ever remotely comply with the requirements of the Act--much less . . . amount[] to substantial compliance." Id.
In its original response, the city failed to advise Ms. Millay-Fullenlove that no written investigative or auditor's reports were generated in the course of its internal investigation. Under the line of authority cited above, this omission constituted a violation of KRS 61.880 (1). We urge the City of LaGrange to bear these observations in mind in responding to future open records requests.
Turning to the substantive issue in this appeal, we find that the city properly declined to honor Ms. Millay-Fullenlove's request for its internal investigative and auditor's report on the grounds that no such written records exist. Mayor Steele furnished Ms. Millay-Fullenlove with a copy of the only written record which satisfied her request, namely the agreement and release. In so doing, she fully discharged the city's obligations under the Open Records Act.
At page 4 of 93-ORD-51, this office recognized that a public agency cannot afford a requester access to documents which do not exist or which it does not have in its possession or custody. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries.
Apparently satisfied with the results of the investigation conducted by the Kentucky State Police, the City of LaGrange elected not to create a written record of its own investigation and that of its auditors. In the absence of evidence to the contrary, we must assume the truthfulness of the city's assertions. The city's supplemental response was proper and consistent with the Open Records Act insofar as it could not make available for inspection documents which apparently do not exist.
Although there is no written record of the results of the city's investigation, Mayor Steele acknowledges that those results were orally communicated to the city council. Ms. Millay-Fullenlove is certainly entitled to request and receive the audiotape of the council meeting at which Councilman Finley's and the auditor's remarks were made, if the tape was purchased with city funds and created at the council's direction. See OAG 92-111; 93-ORD-34; 94-ORD-44; 97-ORD-4.
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.