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 Shamil Muquit's June 10 and June 21, 2002 records requests. For the reasons that follow, we find that in all material respects, the Department's disposition of his requests was consistent with the Open Records Act. However, we find that its response was procedurally deficient.
The record reflects that on or about June 10, 2002, Mr. Muquit mailed two letters to Captain Danny Miles of the Covington Police Department. One of these letters referred to an earlier open records request for copies of the Department's policy and procedure manual, and contained the $ 1.50 reproduction charge imposed for the portions of the manual he requested. The other letter was intended to serve as a new open records request for records "concerning the action taken by this office regarding a complaint filed against Det. Mike McGuffy [sic] on March 5th, 2002, and filed with this office on April 4th, 2002." Mr. Muquit indicated that on May 30, 2002, he received notice "confirming this department's determination that said complaint contained no merit, and that further investigations would be deemed unnecessary." The record further reflects that on or about June 21, 2002, Mr. Muquit mailed a request to Captain Miles for specifically named chapters of the Department's policy and procedure manual. Having received no response to his June 10 and June 21 requests, Mr. Muquit initiated this open records appeal on July 1, 2002.
In a letter directed to this office following commencement of Mr. Muquit's appeal, Covington City Solicitor John Jay Fossett responded to his allegations. Mr. Fossett explained:
The fourth paragraph of Mr. Muquit's appeal addresses a request under the Open Records Act dated June 10, 2002, addressed to Captain Danny Miles, Covington Police Department. A response was not issued to Mr. Muquit from the Covington Police Department due to an error. Captain Danny Miles received two (2) Open Records Requests from Mr. Muquit, both dated June 10, 2002.
Mr. Muquit's second request dated June 10, 2002, is simply responding to a previous request, in which Captain Miles advised Mr. Muquit of the fee involved in supplying Mr. Muquit with copies of certain police policy regulations, as noted on the request, Captain Miles responded to this request on June 14, 2002.
Mr. Muquit's first request dated June 10, 2002, (Exhibit A), requested "Any and all notes, statements, reports, hearings and investigation dates, findings of fact, testimonies, or any communications concerning any hearings, or any other information involving the investigation of Officer Detective Mike McGuffy concerning Affidavit/Complaint filed against him by Shamil Muquit . . . ." This request was not answered in error. However, no records exist within the Covington Police Department that would be responsive to his request, and we have now notified Mr. Muquit of this fact.
In March, 2002, Mr. Muquit attempted to file a criminal complaint against Officer Mike McGuffey in Kenton County Circuit Court. Mary Ann Woltenberg, Kenton County Circuit Court Clerk, returned Mr. Muquit's complaint to him, and advised Mr. Muquit that the complaint should be filed with the Covington Police Department. Mr. Muquit subsequently submitted this complaint to the Covington Police Department.
By letter dated May 28, 2002, addressed to Captain Danny Miles, Mr. Muquit requested an update concerning the status of his complaint against Officer McGuffey. Captain Miles advised Mr. Muquit in a letter dated May 30, 2002, that Mr. Muquit's complaint had been reviewed and found to be without merit, and that no further action would be taken with respect to the complaint.
The fifth paragraph of Mr. Muquit's appeal addresses a request under the Open Records Act dated June 21, 2002, and addressed to Captain Danny Miles, which Captain Miles received on June 24, 2002. Captain Miles responded to this request by letter to Mr. Muquit dated June 27, 2002. This is within the three day response period required under the Open Records Act.
In support of the Department's position, Mr. Fossett submitted copies of Mr. Muquit's June 10 request (Exhibit A), Mr. Muquit's June 10 letter containing payment for copies of records previously requested (Exhibit B), Mr. Muquit's June 21 request (Exhibit C), and Captain Miles' June 27 response to the June 21 request advising him that "the cost of these documents will be 40 cents," and that "upon receipt of this fee [the] requested materials will be sent" (Exhibit D). Mr. Fossett subsequently furnished us with a copy of Captain Miles' July 18 response to Mr. Muquit's June 10 request for records relating to the investigation that resulted from his complaint against Officer McGuffey. In that response, Captain Miles notified Mr. Muquit that the Covington Police Department:
is NOT in possession of any records, files or any other documents as it relates to your complaint on Officer McGuffey. No formal investigation took place and no file was created.
With the exception of the procedural violation noted above, we find no error in the Department's disposition of Mr. Muquit's requests.
We begin by noting that the Covington Police Department failed to comply with the procedural requirements of the Open Records Act set forth in KRS 61.880(1) in responding to Mr. Muquit's June 10 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.
The Department failed to respond to the first of Mr. Muquit's requests at issue in this appeal in writing and within three business days. We have been advised that this omission resulted from the fact that Mr. Muquit simultaneously submitted two letters to the Covington Police Department creating confusion within the Department. We find no error in the Department's disposition of Mr. Muquit's June 21 request, which was received on June 24, and to which a written response was timely issued on June 27.
Turning to the substantive issue in this appeal, we refer the parties to a long line of decisions in which the Attorney General has recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. See, for example, OAG 86-38, OAG 91-101, 93-ORD-51, 96-ORD-164. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Both Mr. Fossett and Captain Miles indicate that no investigation was conducted into the complaint against Officer McGuffey and therefore no responsive records exist. 1 The open records question presented in this appeal is factual, and not legal, in nature.
Nothing in the record before us gives us reason to doubt Mr. Fossett's and Captain Miles' statement that no investigation was conducted into Mr. Muquit's complaint against Officer McGuffey. We hold that the Department's response to Mr. Muquit's open records request was proper and consistent with the requirements of the Act insofar as it cannot make available for inspection, or provide copies of, records that do not exist; in so holding, we do not address whether this was the appropriate course of action under KRS 15.520.
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.
Shamil MuquitP. O. Box 479 D-5Burgin, KY 40310
Captain Danny MilesCovington Police Dept.1929 Madison AvenueCovington, KY 41014
John Jay FossettCovington City Attorney638 Madison AvenueCovington, KY 41011
Footnotes
Footnotes
1 KRS 15.520 governs complaints against police officers and is tended to "establish a minimum system of professional conduct for the police, officers of local units of government of this Commonwealth, . . . to deal fairly and set administrative due process rights for police officers of the local unit of government and at the same time [to] provid[e] a means for redress by the citizens of the Commonwealth for wrongs allegedly done to them by police officers covered by" the provision.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -