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 City of Paducah Police Department violated the Open Records Act in its response to the May 17, 2001 open records request of James Marcus Early to inspect a copy of:
Kentucky State Police Crime Lab report blood samples victim's home 1412 Monroe St. porch step, the dresser in the bedroom, a chair in the bedroom and at 1405 Harrison St. suspect's front porch.
In his letter of appeal, Mr. Early stated that, since the date of the request, he had "received absolutely no information directing my attention to the where-abouts of the records I have requested."
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," the City submitted a response to Mr. Early's letter of appeal. In its response, the City indicated that it had received a request from Mr. Early on May 31, 2001 for a copy of his mugshot and responded to his letter by providing him with a copy of his mugshot on June 1, 2001. The City denied that Mr. Early had submitted a proper open records request on its "Public Records Inspection Request Form."
By letter dated June 12, 2001, we provided the City with a copy of Mr. Early's May 17, 2001 request, upon which he based his appeal, and requested that the City respond to Mr. Early's request, sending the original to him and a copy to this office.
By letter dated June 15, 2001, the City responded to Mr. Early's May 17, 2001 request, which is the subject of this appeal. In its response to him, the City advised, in part:
Although we did not retain copies of your original request and/or our response thereto, according to Sgt. Charles Pinnegar (Affidavit attached hereto as Exhibit "A"), the City of Paducah previously responded to your open records request by sending you copies of the only laboratory report generated in your criminal case, to the City's knowledge. The report, attached hereto as Exhibit "B," was generated by Micro Diagnostics, Inc. This document was previously sent to you in response to your May 17, 2001 request. The City of Paducah does not have a copy of a Kentucky State Police Crime Lab Report, as it is the City's understanding that the Kentucky State Police Crime Lab did not perform a DNA analysis in reference to your criminal case. I assume that you would not deny that you received copies of Micro Diagnostics, Inc's report from the City of Paducah, in light of the fact that you provided a copy of this document to the Attorney General's office in reference to your appeal in this matter.
Subsequently, on June 8, 2001, you submitted another open records request to the City of Paducah Police Department to review the Kentucky State Police Crime Lab Report. A copy of your request is attached to Pinnegar's Affidavit as Exhibit "1." This document was received by the Paducah Police Department on June 11, 2001. On that date, Sgt. Pinnegar again sent you copies of the Lab Report generated by Micro Diagnostics, Inc. In addition, you will note that his response on that date references the fact that he had previously sent you copies of said Report.
I understand that, in requesting the Kentucky State Police Crime Lab Report, you reference an Amended Bill of Particulars, filed by the Commonwealths Attorney's in your criminal matter, which states that a Kentucky State Police Crime Lab Report would be introduced at the trial of your case. One can only assume that the Commonwealths Attorney's office mistakenly identified Micro Diagnostic, Inc.'s Lab Report as the Kentucky State Police Crime Lab Report, since there is no Kentucky State Police Crime Lab Report in this case, to the City's knowledge.
Mr. Early, the Paducah Police Department cannot respond to your request beyond what has already occurred, as the Paducah Police Department does not have a copy of the Kentucky State Police Crime Lab Report, if one in fact does exist.
We are asked to determine whether the response of the City violated a violation of the Open Records Act. For the reasons that follow, we conclude it did not violate the Act.
In its response to the May 17, 2001 request and to other similar requests, the City provided Mr. Early with a copy of the Micro Diagnostic, Inc.'s Lab Report on the DNA blood sample test done for Mr. Early's criminal case. The City further explained to him that this was the only Lab Report the Police Department had and affirmatively advised him that it did not have a Kentucky State Police Crime Lab Report.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. The Paducah Police Department provided Mr. Early with the only Lab Report it had and advised that it did not have a Kentucky State Police Crime Lab Report. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not 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 City were in accord with the requirements of the Open Records Act and prior decisions of this office and did not constitute a violation of the Act. 00-ORD-108.
We address next the issue of whether Mr. Early submitted a proper open records request. In its first response to the letter of appeal, the City indicated that Mr. Early had not submitted a proper request on the Police Department's "Public Records Inspection Request Form." The fact that Mr. Early did not use the agency's form in his open records application cannot serve as a valid basis for denying a request. In 94-ORD-101, this office held:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature;
2. Applicant's name printed legibly; [and]
3. Description of records to be inspected.
94-ORD-101, p. 2, 3; see also OAG 76-588. The City's June 15, 2001 response indicated the Police Department responded to Mr. Early's May 17, 2001 request. The record before us is unclear whether any requests were denied because they were not on the agency's official request form. To the extent, if any, the Police Department failed to honor any requests because they were not submitted on a particular form, its actions were contrary to the requirements of the Open Records Act.
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.