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 Louisville Police Department's Metro Narcotics Unit violated the Open Records Act in denying Demetrius Davis's April 29, 1999, request for a copy of the "lab test results of the cocaine residue that was found on the electronic scales in Case No. 94F008535, arrest date 8-09-94." For the reasons that follow, we find that although the Metro Narcotics Unit cannot be said to have committed a substantive violation of the Act, insofar as it cannot produce a record that no longer exists, its response was procedurally deficient.
On May 24, 1999, Metro Narcotics denied Mr. Davis's request, advising him as follows:
Copy of lab test must be requested through KY State Police Crime Lab. We no longer have a copy.
Shortly after Mr. Davis initiated this open records appeal, Stephanie Harris, Assistant Director of Law for the City of Louisville's Department of Law, filed a supplemental response to the appeal. Ms. Harris stated:
Based on Mr. Davis' letter, Metro Narcotics did respond to his open records request dated April 29, 1999. Metro Narcotics informed Mr. Davis that their agency had destroyed the drug evidence and lab report. Therefore, he should contact the Kentucky State Police Crime lab to obtain a copy of the lab report. According to Mr. Davis, he notified the Kentucky State Police Jefferson Regional Forensic Laboratory. As of the date of his appeal, the Kentucky State Police had not responded. The Louisville Division of Police is a separate agency from the State Police and therefore is not the proper custodian of the record in which Mr. Davis seeks to obtain [sic].
Ms. Harris expressed her uncertainty as to "how the City of Louisville [Metro Narcotics Unit] violated the Open Records Act. " 1
It is the opinion of this office that the Metro Narcotics Unit's May 24 response to Mr. Davis's request did not conform to 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.
In construing this provision, the Kentucky Court of Appeals has observed:
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.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). 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.
Metro Narcotics's response to Mr. Davis's request was deficient in two respects. At least fifteen business days elapsed between the date the request was mailed and the date on which the Unit's response was issued. This exceeded the three day deadline for statutory response by some twelve business days. In addition, the Unit did not provide Mr. Davis with particular and detailed information in response to his request. Contrary to the Department of Law's apparent belief, Metro Narcotics did not notify Mr. Davis that it had destroyed the drug evidence and lab report. The Unit merely advised him that it "no longer [had] a copy." This limited and perfunctory response did not amount to substantial compliance with the Open Records Act. We urge the Metro Narcotics Unit to review the cited provision to insure that future responses conform to the Act.
Turning to the substantive issues in this appeal, we find that the Unit cannot be said to have violated the Open Records Act in failing to produce a record which apparently no longer exists. This office has long recognized that a public agency cannot afford a requester access to records which do not exist, or have been destroyed. OAG 83-11; OAG 91-203; 97-ORD-82. In general, it is not the Attorney General's duty to investigate in order to locate missing records.
The Kentucky Open Records Act was amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.40 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 explaining why the records no longer exist, we do not believe that this appeal warrants additional inquiries. These records were apparently destroyed in the normal course of business. They are no longer in the custody of Metro narcotics, and therefore cannot be released. The question presented in this appeal is factual, and not legal, in nature.
Consistent with KRS 61.872(4), 2 Metro Narcotics advised Mr. Davis that the Unit did not have custody of the disputed records, and furnished him with the identity of the custodian of those records, the Kentucky State Police. Additional problems have apparently arisen since Mr. Davis submitted his request to that agency, and he may wish to consider initiating a separate appeal to this office relative to those problems. We cannot, however, in this context of the appeal before us, afford him the relief he seeks relative to improper disposition of his request by the State Police.
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.
Footnotes
Footnotes
1 Ms. Harris also noted that Mr. Davis's initial request to Metro Narcotics, and Metro Narcotics' response were not attached to the notification of appeal which the Attorney General directed to the Department of Law. It is not our practice to furnish the responding agency with copies of these documents, unless requested, our assumption being that they can be retrieved from the agency's own files.
2 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.