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 City of Louisville Division of Police violated the Open Records Act in the disposition of WLKY-TV reporter Andy Alcock's requests for access to records pertaining to allegations and complaints leveled against two city police officers. For the reasons that follow, we conclude that the Division of Police violated KRS 61.880(1) in responding to Mr. Alcock's requests, and failed to satisfy its statutory burden of proof in sustaining the partial denial of those requests.
On August 20, 2001, Mr. Alcock submitted a written request for access to "any information available about a possible sexual harassment complaint against Sgt. Dale Thompson . . . [made by] a female officer at the 3rd District on the flex platoon . . . ." In addition, Mr. Alcock requested access to "any information available on Officer Terry Compton . . . [who was reportedly] moved out of the 4th District following a complaint by an African-American officer claiming Compton referred to the officer's child using a racial pejorative." 1 Within a few days of submission of these requests, 2 and in response to Mr. Alcock's telephone inquiries, Helene Kramer, Louisville Division of Police Press and Public Information Office, orally advised Mr. Alcock that there was no sexual harassment complaint against Sgt. Thompson. He received no written response to his requests.
On August 27, 2001, Mr. Alcock submitted a second request in which he asked for "any information on the most recently completed internal investigation of Lieutenant Dale Thompson," including "the nature of the complaint, who made it, . . . and how the complaint was resolved." He also requested access to "information involving the off duty traffic accident of Officer Reuben Highsmith, and the resulting investigation of Major Don Burbrink and others." On August 30, 2001, Public Information Specialist Alicia M. Smiley responded to this request in writing, advising Mr. Alcock as follows:
With regard to item # 1, your request is being researched to determine what, if any, documents may be available. Please be advised that releasable documents will only include those that initiate the investigation and the disposition of the case.
At this time the investigation regarding Officer Reuben Highsmith and Major Donald Burbrink is currently pending and therefore no documents are available for release.
Ms. Smiley suggested that Mr. Alcock resubmit his request after the investigation was concluded.
Following a series of renewed telephone inquiries, Mr. Alcock received two responsive records from the Division of Police on September 7. The records disclosed consisted of Colonel Greg Smith's August 14, 2001 memorandum to Major Myra Mason, Office of Professional Standards, requesting that OPS initiate an investigation into allegations of discrimination leveled against Sgt. Thompson by a female officer in the Third District Flex Unit, and an August 20, 2001 Memorandum from Colonel Smith to Sgt. Thompson that states in full:
This letter is to advise you that the complaint against you, O.P.S. investigation # 01-133, has been resolved as:Rule 2.023Commanding OfficersNot-Sustained
This investigation is now closed.
These records, which were transmitted by fax, apparently contained no accompanying response setting forth the statutory basis for the Division's partial denial of Mr. Alcock's request. On October 11, 2001, he initiated this appeal.
In a response directed to this office following commencement of Mr. Alcock's appeal, Stephanie Harris, Assistant Director of Law for the City of Louisville, defended the Division's actions. She confirmed the telephone conversation between Helene Kramer and Mr. Alcock in which Ms. Kramer advised Mr. Alcock that no sexual harassment complaint had been filed against Sgt. Thompson, noting that as a result of the conversation "Mr. Alcock was aware that the records that he had described did not exist." With reference to the second part of Mr. Alcock's August 20 requests, Ms. Harris explained, apparently for the first time:
[A]t the time of Mr. Alcock's request there were 2 pending internal affairs investigations. The pending investigations are not related to the incident described in Mr. Alcock's request. I am advised that at present date the investigations are still pending and thus no records will be released until the completion of those investigations. KRS 61.878(1)(h).
Turning to the issue of the Division's failure to issue a written response to the August 20 requests, Ms. Harris observed:
KRS 61.872(5) states that the official custodian of record shall notify the applicant within 3 business days from receipt of the application regarding the status of the requested records. As is sometimes the case where local media representatives contact a city press or public information employee, Mr. Alcock was notified via telephone on August 22nd that a sexual harassment complaint was not filed against Sgt. Thompson and thus a complaint of this nature did not exist. The fact that Mr. Alcock never received a response in writing that a record doesn't exist is not a violation of the Open Records Act. The City receives numerous open records request especially requests from the media. There are times the City will respond to a request orally rather than written. Because of the ongoing relationship between reporters and press office employees, reporters often do not require a written response but merely want to know if a record exists or not. Of course, if the City is denying records or attempting to explain that some records are not readily available and will take some time to locate, then a written response is always provided.
In defense of the Division's disposition of Mr. Alcock's August 27 request, Ms. Harris noted that Ms. Smiley responded in writing on August 30, advising him that "she would need to research the records to see what records were available." Ms. Harris explained the process for retrieving an internal investigations file from the Office of Professional Standards. She indicated that in Mr. Alcock's case the file was forwarded to Ms. Smiley on September 5, the file was reviewed, and the complaint and final disposition released on September 7. In closing, Ms. Harris commented:
The issue in this case is whether the records were provided to Mr. Alcock within a reasonable time period. The City contends that the records were made available to Mr. Alcock within a reasonable time period. Mr. Alcock's request of August 20th was verbally responded to on or about August 22nd. Ms. Kramer advised Mr. Alcock that the records he had described did not exist. Mr. Alcock later submitted another open records request dated August 27th re-describing the records at issue as "the most recently completed internal investigation of Lt. Dale Thompson." Ms. Smiley responded to the request within the 3-day period and advised him that she was attempting to locate the records. On or about September 7th, the records were forwarded to Mr. Alcock.
She concluded that the majority of the City's responses to open records requests are issued in a timely fashion, but that when the records cannot be disclosed on the third business day, "the City advises the requester that the records will be available at a time certain date."
We do not concur with the City of Louisville Division of Police in the view that the single issue in this case is whether the records were provided to Mr. Alcock within a reasonable time period. Instead, we believe the issues are broader in scope, touching upon the fundamental issue of the public's right of access and the agency's statutory duty to sustain its action, here, the partial denial of an open records request. Consistent with the longstanding position taken by this office that the requirements set forth at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request," 93-ORD-125, p. 5, we find that the Division's responses were both procedurally and substantively deficient. Significantly, no legally recognized basis for partially denying Mr. Alcock's request has been asserted to date.
A public agency's duties in responding to an open records request are clearly defined in KRS 61.880(1). That statute provides, in part:
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.
In
Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals construed this language to require "the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson at 858. "A limited and perfunctory response" to an open records request, the court concluded, does not "even remotely comp[y] with the requirements of the Act. . . ." Id.
At least twice in the past year, the Attorney General has recognized that an agency's inability to produce records due to their nonexistence is tantamount to a denial, and that it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 01-ORD-59, p. 5. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. Accordingly, we find that the failure of the Division of Police to issue a written response to Mr. Alcock's August 20, 2001 request, advising him that no records relating to Sgt. Thompson and a sexual harassment complaint and Officer Compton and a complaint involving the use of a racial pejorative exist, constituted a violation of KRS 61.880(1). The Open Records Act requires all public agencies to "notify in writing the person making the request, within the three (3) day period, of its decision" without exception, and the Division's informal practice in responding to media requests is therefore improper.
On the issue of the agency's duty to respond in writing, and within three business days, the Attorney General has further observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not otherwise available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 7. This rule applies with equal force to requests that are "being researched," including Mr. Alcock's August 27 request. Thus, where responsive records must be retrieved from the Office of Professional Standards, KRS 61.872(5) requires the Division of Police to "so notify the applicant and . . . designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " "Failure to comply with these provisions," the Attorney General has recently observed, "constitutes a violation of the Open Records Act. " 99-ORD-13; p. 6; 01-ORD-38, p. 7.
As noted, Mr. Alcock submitted his second open records request on August 27. Although the Division of Police issued a timely written response to that request, the response was deficient insofar as it failed to include a detailed explanation of the cause for delay beyond the three day deadline, and a statement of the place, time, and earliest date on which the records would be available for inspections. Moreover, when the Division released the responsive records to Mr. Alcock on September 7, it failed to provide a written statement of the specific exception authorizing the withholding of the remaining investigative records and a brief explanation of how the exception applies to the records withheld. As a result of this omission, we find that the Division of Police did not satisfy its statutory burden of proof in sustaining the partial denial of Mr. Alcock's request for "any information" pertaining to the investigation of Sgt. Thompson.
Mr. Alcock did not request the records "that initiated the investigation and the disposition of the case" only. Instead, he requested access to any information pertaining to the investigation. Our review of the disputed records, submitted to this office by the Division of Police pursuant to KRS 61.880(2)(c) in order to facilitate our review, discloses an extensive OPS investigative file for which no exemption is invoked. Neither Ms. Smiley in her original response, nor Ms. Harris in her supplemental response, cite any statutory authority in support of the Division's partial denial of Mr. Alcock's request. The Division of Police, having failed to advance any legally recognized basis for partially denying him access to the investigative file, must disclose the file to Mr. Alcock or assert one or more of the exceptions in a de novo appeal of this decision.
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.
Andy Alcock1918 Mellwood AvenueLouisville, KY 40206
Alicia SmileyCity of LouisvilleDivision of Police633 W. Jefferson StreetLouisville, KY 40202-2786
Stephanie HarrisAssistant Director of Law City of LouisvilleRoom 200, City HallLouisville, KY 40202-2771
Footnotes
Footnotes
1 Although Mr. Alcock's requests were framed as requests for information, the Division of Police did not elect to deny them on the basis.
2 The Division of Police states that this telephone conversation occurred "on or about August 22." Mr. Alcock does not indicate on what date the conversation occurred.