Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the actions of the City of Covington relative to Donald A. Haubner's open records requests for copies of "any and all regulations, ordinances, Standard Operating Guidelines and/or any other policy your city, its Fire Department or its Rescue Squad may have adopted concerning the carrying of concealed or open weapons; regardless of whether such policy(s) is pro-weapons, or anti-weapons."
In his letter of appeal, dated March 23, 1998, Mr. Haubner stated that he had sent three separate faxes and three separate letters to the City of Covington between March 3, 1998 and March 16, 1998 and had yet to receive a response to his requests.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the City of Covington and enclosed a copy of Mr. Haubner's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Joseph T. Condit, City Attorney, responded on behalf of the City. In his response, Mr. Condit explained:
There was some delay in responding to the request partially due to the fact that we needed to verify if there were any policies adopted by individual departments of the City of Covington. After making contact with the appropriate departments, we sent Mr. Haubner the attached letter dated March 24, 1998.
The City's March 24, 1998 letter in response to Mr. Haubner's open records requests, stated:
The City of Covington, its fire and police departments, have not adopted any regulations, ordinances, standard operating guidelines and/or other policies concerning the carrying of concealed or open records.
We are asked to determine whether the actions of the City were consistent with the Open Records Act. For the reasons that follow, we conclude that although the City's response was procedurally deficient, its substantive response was consistent with the Act.
KRS 61.880(1) sets forth procedural guidelines for 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.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134.
However, if the delay is to be in excess of three working days after an open records request has been made, the agency is required to immediately notify the requester and provide a detailed explanation of the cause for further delay and give a place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5).
In the instant case, the City failed to notify Mr. Haubner that there would be a delay in responding to his request and failed to provide a detailed explanation of the cause of the delay and a time and the earliest date on which the records, if any, would be available for inspection. This portion of the City's response was procedurally deficient and inconsistent with the requirements of KRS 61.880(1) and KRS 61.872(5).
Turning to the substantive issue in this appeal, this office has consistently recognized that a public agency cannot provide a requester access to a record it does not have or which does not exist. 98-ORD-35; 96-ORD-190. In his response, Mr. Condit explained that neither the City, nor its fire and police departments, had adopted any regulations, ordinances, standard operating guidelines and/or other policies concerning the carrying of concealed or open records. Accordingly, we conclude that the City's response explaining that the requested records did not exist was consistent with the Open Records Act.
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.