Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Warren County Sheriff's Office violated the Open Records Act in responding to Billy E. Glodjo's August 10, 2000 request for:
One (1) complete copy of all report's on an incident that this department responded to on 10-25-94 at approximately 8:45 p.m. to a call at 151 North Spruce Lane, Warren County, Kentucky, including but not limited to, police and/or incident report, responding officers log or response notes, etc., etc., and the responding officer's name and badge number.
By letter dated September 5, 2000, Delores Steele, Records, responded on behalf of the Sheriff's Office. In her response, Ms. Steele advised:
I am writing in reference to your open record request for information on an incident that happened on October 25, 1994.
I have received your request and I am trying to follow up with the request. I have been looking for the information you requested, however, the records have been archived. Furthermore, upon checking through the archives, all records and dispatch logs dated 1995 and back have been destroyed.
Any further requests might be filed through the Warren County Attorney's Office.
For the reasons that follow, we conclude the Sheriff Office's actions in relation to Mr. Glodjo's request, although procedurally deficient, was in substantial compliance with the Open Records Act.
The actions were inconsistent with the procedural requirements of KRS 61.880(1) in its handling of Mr. Glodjo's 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 statute requires a timely, written response directed to the person making the request. The failure to provide Mr. Glodjo with a written response within three business days after receipt of his request was a procedural violation of the Act.
Turning to the substantive issue, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134.
The Sheriff's Office advised Mr. Glodjo that it did not have the requested records, that the records had been archived, and had since been destroyed. Ms. Steele indicated that all records and dispatch logs dated 1995 and back had been destroyed. Obviously, a public agency cannot afford a requester access to records that it does not have or which no longer exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Sheriff's Office fully discharged this duty. Accordingly, we find that the actions of the agency were substantively in accord with the requirements of the Open Records Act.
We have confirmed, through the Department for Libraries and Archives, that the Warren County Sheriff Office's records retention policies for incident reports at the time the records were created in 1994 was three years. Thus, the destruction of the records in question was consistent with the established records retention policies of the agency.
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.