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 Oldham County Central Dispatch violated the Open Records Act in the disposition of Christophe Stewart's February 21, 2001, request for various records pertaining to dispatch services. For the reasons that follow, we find that OCCD's response was procedurally deficient, but substantively correct.
On February 21, Mr. Stewart requested copies of:
1. [The] written policy of the assignment and/or dispatching of wrecker runs by [OCCD];
2. [The] policy concerning potential conflicts of interest any employee may have in the assignment and/or dispatching of wrecker runs by [OCCD];
3. [A] list of licensed commercial auto towing trucks in Oldham County, Kentucky.
Having received no response to his request, Mr. Stewart initiated this appeal on March 6, 2001.
Upon receipt of this office's notification of Mr. Stewart's open records appeal, Lieutenant Tim Wakefield, Oldham County Police, mailed Mr. Stewart a copy of the OCP's "policy pertaining to the assignment of wrecker runs and the rotating wrecker log." Shortly thereafter, James B. Morse, Director of Oldham County Central Dispatch, mailed Mr. Stewart OCCD's Standard Operating Procedure for Wrecker Rotations. Mr. Morse advised Mr. Stewart that OCCD maintains no written policy relating to conflicts of interest in the assignment or dispatch of wrecker runs, or a list of licensed towing companies. He did, however, provide Mr. Stewart with "a current list of wrecker services authorized by the police department to be included in the wrecker rotation . . . ." In addition, Mr. Morse advised Mr. Stewart to direct all future open records requests to John Fendley, Oldham County Attorney, 100 West Jefferson Street, LaGrange, KY 40031. Although, as noted, these responses were untimely, they were in all other substantive respects, consistent with the requirements of the Open Records Act.
We begin by noting that KRS 61.880(1) sets forth procedural guidelines for agency response to an open records 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.
To the extent that Oldham County Central Dispatch failed to respond in writing, and within three business days, to Mr. Stewart's request, we find that it violated KRS 61.880(1). We urge OCCD to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we find that OCCD otherwise discharged its duties under the Open Records Act by mailing Mr. Stewart copies of all existing records that were responsive to his requests for assignment and dispatch policies and a list of licensed towing trucks, and advising him that no record exists that is responsive to his request for policies relating to conflicts of interest in wrecker assignment and dispatch. Obviously, OCCD cannot provide Mr. Stewart with a copy of a record that does not exist. This proposition has become nearly axiomatic in open records analysis. See, for example, OAG 83-111; OAG 87-54; OAG 91-112, OAG 91-203; 97-ORD-17. For many years we held that, in general, it is not our duty to investigate in order to attempt to locate a lost or purportedly nonexistent document. Thus, in OAG 86-35 the Attorney General recognized that this office "is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for a party seeking to inspect such documents." OAG 86-35, p. 5.
However, in 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations).
In the appeal before us, OCCD has advised that it does not maintain a policy on conflicts of interest arising in the assignment and dispatch of wrecker runs. Although there are occasions when, under the mandate of KRS 61.8715, this office refers an appeal concerning the unexplained nonexistence of public records to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under Chapter 171, and in particular KRS 171.640 requiring adequate and proper documentation of essential transactions of the agency, this appeal does not warrant additional inquiry. OCCD cannot release a written policy that has never been developed. The issue before us is factual, and not legal, in nature. We therefore affirm OCCD's disposition of Mr. Stewart's request.
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.