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 comes to the Attorney General on appeal from James England's letter of appeal stating that the Kentucky State Police (KSP) failed to respond to his open records request.
Along with his letter of appeal, Mr. England enclosed a copy of his September 21, 1998 open records request, addressed to the KSP, in which he requested a copy of records which names or refers to him and particularly to include "the investigation of allegations that involved any activity [he] had with Jennifer Carroll and/or Heather Carroll."
After receipt of the letter of appeal, this office sent a "Notification to Agency of Receipt of Open Records Appeal" to the KSP and enclosed a copy of Mr. England's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Diane H. Smith, Official Custodian of Records, KSP, provided this office with a response to the issues raised in the appeal. In her response, Ms. Smith indicated that the KSP had no record of having received a request for records from Mr. England dated September 21, 1998, which explained why the KSP had not responded.
Upon receipt of the KSP's response, we sent a copy of Mr. England's September 21, 1998 open records request, which he had provided with his letter of appeal, to the agency and asked that it respond to the request in writing with the original response to Mr. England and a copy to this office.
As directed, Ms. Smith provided Mr. England with a response to his September 21, 1998 request. In her response to Mr. England, Ms. Smith again confirmed that the KSP had not received his request dated September 21, 1998. As to the records requested, she stated:
Please be advised the Kentucky State Police has no investigation of an incident involving you and Jennifer and/or Heather Carroll. It is my understanding from personnel at the Elizabethtown Post that this matter was investigated by the Elizabethtown Police Department and is not in the possession of this agency. You would need to request it directly from the investigating agency.
Additionally, in order to search our files for other records concerning you, we need your full name, date of birth and social security number or the date, names of the parties involved and location of other incidents.
At issue in this appeal is whether the response of the KSP was consistent with the Open Records Act. For the reasons that follow, we conclude that it was.
To begin, we have no reason to doubt the KSP's claim that it had not previously received Mr. England's September 21, 1998 request and address only the merits of its subsequent response to that request.
Ms. Smith informed Mr. England that the KSP had no records of an investigation relating to him and Jennifer and/or Heather Carroll. She further advised that it was her understanding that the matter was investigated by the Elizabethtown Police Department and he should request records relating to that investigation directly from that agency. This response was consistent with the Open Records Act. This office has consistently recognized that an agency cannot provide copies of records which it does not have or which do not exist. 98-ORD-35. In accordance with the requirements of KRS 61.872(4), Ms. Smith further advised Mr. England that the KSP did not have records of the investigation he requested and advised him of the name and location of the agency which had the requested records.
Mr. England also requested all agency records which names or relates to him. In her response, Ms. Smith advised Mr. England that in order to search KSP files for other records concerning him, they needed his full name, date of birth and social security number or the date, names of the parties involved and location of other incidents.
We conclude this was a reasonable response by the agency to obtain specific information identifying the requester to enable it to do a complete search for records pertaining to him.
In his letter of appeal, Mr. England asks whether it is appropriate for him to have to provide his social security number in order to obtain the records relating to him. It may have been necessary, in this instance, for the agency to use a numerical identifier, such as his social security number, to do a complete and thorough search of its files for all records pertaining to him. Moreover, Mr. England has an alternative means of identifying the specific records he seeks, such as providing the date, names of the parties involved and location of other incidents. Accordingly, we conclude this response was also 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.