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 presented in this appeal is whether the City of Owenton violated the Open Records Act in responding to Gerald T. Kemper's May 22, 1998, request for a copy of the Owenton Police Department activity log for March 16, 1998. For the reasons that follow, we find that although the city's response was procedurally deficient, its actions were otherwise consistent with the Open Records Act.
In a letter to this office dated June 9, 1998, city attorney Mark R. Cobb explained that on June 4, 1998, city clerk Freda C. Prather responded to Mr. Kemper's request, advising him that the Owenton Police Department does not maintain an activity log. Based on earlier requests submitted by Mr. Kemper, Ms. Prather apparently knew the subject of his inquiry, and furnished him with "a copy of Officer Gentry's report." Mr. Cobb confirmed that the police department does not keep a daily log, and concluded by noting that no other records exist which are responsive to Mr. Kemper's request.
We begin by noting that the City of Owenton failed to comply with the procedural requirements of the Open Records Act set forth in KRS 61.880(1). 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.
Ms. Prather failed to respond to Mr. Kemper's request in writing and within three business days. We have been advised that this omission resulted from her recent illness. Nevertheless, we remind the city that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the City of Owenton to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we refer the parties to a long line of decisions in which the Attorney General has recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. See, for example, OAG 86-38, OAG 91-101, 93-ORD-51, 96-ORD-164. In general, it is not our duty to investigate in order to locate documents 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. Both the city clerk and the city attorney state that the City of Owenton does not maintain a daily log of police activity. The question presented in this appeal is factual, and not legal, in nature.
This office has no reason to doubt Mr. Cobb's statement that all responsive records have been released to Mr. Kemper. The City's response was proper and consistent with the requirements of the Act insofar as it cannot make available for inspection records which do no exist.
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.