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 Louisville & Jefferson County Crimes Against Children Unit (CACU) violated the Open Records Act in its response to the open record request of Timothy Tyler for "all written recorded testimonies, audio, and video tapes, all evidence and pictures. Case # 98CR0997."
In his September 19, 2000 letter of appeal, Mr. Tyler stated that he had yet to receive a response to his request, which he submitted on August 29, 2000.
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," Stephanie Harris, Assistant Director of Law, City of Louisville, submitted a response on behalf of the CACU to the issues raised in Mr. Tyler's letter of appeal. In her response, Ms. Harris advised:
The City did not deny Mr. [Tyler's] access to records maintained by the City. Captain Lucchese in the Louisville and Jefferson County Crimes Against Children Unit has verified that his office did not receive Mr. [Tyler's] request. In addition, I also spoke with Joyce Boblitt, Paralegal in the Louisville Division of Police Legal Advisor's Office and she too verified that she did not receive Mr. [Tyler's] request.
After reviewing Mr. [Tyler's] request received from your office on September 22, 2000, the City offers the following response:
I understand that through a discovery order your attorney obtained a copy of all the evidence maintained in the Commonwealth attorney's file. It is therefore, likely that the investigative records of the Louisville and Jefferson County Crimes Against Children Unit (CACU) were a part of the file obtained by your attorney.
However, with regards to records described as written or recorded testimony, CACU did not record any such testimony during their investigation and therefore no such records exist. You may want to contact Circuit Court for any recorded testimonies they may have obtained during your plea-bargaining.
Records described as audio and videotapes do not exist as well. The videotapes and photographs that were confiscated during the search warrant have been destroyed at the request of the Commonwealth Attorney's Office. I am advised that maintained in the CACU files are photographs of the house, which were taken during the search warrant and a copy of the investigative letter. If you are interested in copies of either of these records, you should contact Captain Frank Lucchese in the Louisville and Jefferson County Crimes Against Children Unit at the following address:
Crimes Against Children Unit
436 South 7th Street
First Floor
Louisville, KY 40202
Please be advised that pursuant to KRS 61.878(1)(a) and (1), a redacted copy of the investigation letter will be provided.
We are asked to determine whether the response of the City of Louisville, on behalf of the CACU, was a violation of the Open Records Act. For the reasons that follow, we conclude that the response of the agency was in compliance with the Act.
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 City of Louisville has advised that the requested records do not exist. 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. Accordingly, we find that the actions of the agency were in accord with the requirements of the Open Records Act.
Finally, an agency cannot be said to have violated the Open Records Act for failing to respond to a request that it did not receive. We do note that the City timely responded to Mr. Tyler's request after a copy was provided to the agency subsequent to his appeal to this office.
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.