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 Covington Police Department violated the Open Records Act in the disposition of Chris Henson's December 6, 2000, request for three offense reports. For the reasons that follow, we conclude that the Department's failure to respond to Mr. Henson's request in writing, and within three business days, constituted a violation of KRS 61.880(1), and that unless the Department can articulate a statutory basis for denying access to these records, it must make the records available for inspection and copying.
This is the second appeal presented to the Attorney General involving these parties, and the issues raised are largely indistinguishable. Accordingly, we incorporate 01-ORD-8 into this decision by reference, and adopt the findings and conclusions contained therein. The only new issue 1 with which we are presented centers on the Covington Police Department's failure to respond to Mr. Henson's December 6, 2000, request for copies of:
1. [T]he robbery report made by The Bank of Kentucky, 1831 Madison Avenue, Covington KY 41014, on November 10, 2000;
2. [T]he robbery report made by Firstar Bank, 6 Madison Avenue, Covington KY 41011, on November 13, 2000;
3. [T]he robbery report made by The Bank of Kentucky, 1831 Madison Avenue, Covington KY 41014, on November 21, 2000.
This request went unanswered, prompting Mr. Henson to initiate a new appeal.
In a memorandum directed to this office following commencement of Mr. Henson's appeal, Lt. Col. Thomas Schonecker advised:
In regards to . . . Log Number 2000 00793, Chris Henson's statements are false and without merit. I would like the opportunity to defend the accusations made by Mr. Henson.
In a subsequent telephone conversation conducted for the purpose of scheduling a response date, Lt. Col. Schonecker stated that this memorandum constituted the Department's response, and that he saw no need to elaborate. We find that the Department's actions did not satisfy the requirements of the Open Records Act.
As noted at page 6 of 01-ORD-8, KRS 61.880(1) governs agency response to an open records request. That statute requires public agencies to respond in writing, and within three business days, to all open records requests, regardless of the identity of the requester or the nature of the records requested. If the agency elects to deny access to all or part of the records requested, it must cite the exception authorizing nondisclosure and briefly explain its application to the record withheld. It is undisputed that the Department failed to discharge this statutory duty. Its failure to do so constituted a violation of KRS 61.880(1).
To date, the Covington Police Department has failed to advance any legally recognized argument in support of its denial of Mr. Henson's request. Unless the Department can do so, it is obligated to release the records identified in Mr. Henson's request for inspection, if he both lives and works in Kenton County, or furnish him with copies of those records, if his principal place of business is outside Kenton County. KRS 61.872(3)(b). The Department cannot elect a course of inaction.
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 proceedings.
Distributed to:
Chris Henson1939 Augustine AvenueCovington, KY 41014
Lt. Col. Thomas SchoneckerCovington Police Department1929 Madison AvenueCovington, KY 41014
Footnotes
Footnotes
1 In his letter of appeal, Mr. Henson describes a telephone conversation with an employee of the Covington Police Department in which he was allegedly advised that all open records requests submitted by him were "to be destroyed and discarded." The Department disputes this allegation, characterizing it as "false and without merit." Such a factual dispute is incapable of resolution in an open records appeal based on the review of a limited written record, and we therefore decline to address this issue. See, 00-OMD-142; 00-OMD-169; 98-ORD-148; 99-OMD-167.