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 Elsmere Police Department violated the Open Records Act in denying Chris Henson's May 13, 2002 request for "all offense/incident reports . . . on: Michelle A. Price A.K.A. Michelle A. Christafield, Michelle Fisher, Michelle Henson, Michelle Eversole . . . ," 1 and "a computer printout of all police calls to 70 Eagle Drive" from January 1, 1999 to the present. Having received no response from the Department, Mr. Henson initiated this appeal. For the reasons that follow, we find that the Department's failure to respond to Mr. Henson's request constituted a violation of KRS 61.880(1). Further, we find that the evidentiary record reflects an inadequate search for responsive documents. Acknowledging the limits of our role in adjudicating open records disputes, we also note that the Elsmere Police Department apparently neglected to notify the Kentucky Department for Libraries and Archives (KDLA) that the records maintained in its computer were destroyed by a virus, and to provide the KDLA with a destruction certificate for those records under the mandate of Chapter 171 of the Kentucky Revised Statutes.
In a response directed to this office following commencement of Mr. Henson's appeal, Robert W. Carran, an attorney representing the Elsmere Police Department, advised:
The computer of the Elsmere Police Department is down, and has been down since before Mr. Henson's records request. Mr. Henson knows this. Upon repair, the requested information will be immediately supplied.
Approximately one month later, 2 Mr. Carran notified this office that "the computer system for the Elsmere Police Department was affected by a virus on May 9th [and] [t]he records on the computer system were destroyed and not retrievable." He did not indicate if the Department attempted to locate and retrieve electronic copies from a system back-up, or hard copies from its manual files, in order to satisfy Mr. Henson's request.
It is the opinion of this office that the Elsmere Police Department violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Henson's May 13 request. The fact that its computer system was "down" at the time of Mr. Henson's request, and that he "knew" this, did not relieve the Department of its statutory duty as set forth in KRS 61.880(1):
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 language of the statute directing agency action is exact." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It requires a timely written response to the person making the request accompanied by the requested records or a statement of the specific exception authorizing nondisclosure. If, alternatively, the requested records are:
in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three 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.
KRS 61.872(5). Agency inaction is not a viable option. Because the Department failed to issue a written response of any kind to Mr. Henson's request, we find that its inaction constituted a violation of the procedural requirements of the Act.
Turning to the substantive issue in this appeal, we note that Mr. Henson requested two sets of records, the first "all offense/incident reports . . . on Michelle A. Price . . ." in an undesignated format, and the second "all police calls to 70 Eagle Drive" from January 1, 1999 to the present in a "computer printout. " Unable to access records on its disabled computer system, the Department apparently discontinued its search.
Whether the Department's efforts to locate responsive records constituted an adequate search turns on the standard established in 95-ORD-96. At page seven of that decision, the Attorney General observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records.
The Department apparently directed its inquiry to the first, and most obvious, source of responsive records, its computer. That computer having been infected by a virus, and the records stored therein having been rendered irretrievable, the Department made no effort to extend its search beyond the obvious. With regard to incident reports, we note that these reports are generally created in a hard-copy format and, depending on a department's retention policy relative thereto, 3 can be accessed and retrieved regardless of a computer failure. The Department does not indicate that any effort was made to conduct a search of existing hard copies of incident reports to locate reports "on Michelle Price." With regard to police calls, we note that such calls are generally recorded on radio run tapes. 4 If, in fact, this is the case with the Elsmere Police Department, the Department does not indicate that these tapes were somehow compromised when its computer system was attacked by a virus, or that if they were, any effort was made to recover the tapes through a back-up system. In the absence of any verifiable statement that the only existing copies of the records Mr. Henson requested were maintained on the Department's computer, we must conclude that the Elsmere Police Department did not conduct a search using methods which could reasonably be expected to produce the records requested. Accordingly, the Department should expand the scope of its search to existing hard-copy records, audio tapes, and back-up systems in order to locate responsive records. 5
In closing, we note that if, in fact, all departmental records were destroyed by the virus that infected its computer on May 9, it was incumbent on the Elsmere Police Department to notify the KDLA, under the mandate of Chapter 171 of the Kentucky Revised Statutes, by submission of a records destruction certificate to the KDLA. We have confirmed, through KDLA representatives, that the KDLA has received no destruction certificate from the Elsmere Police Department to date. We urge the Elsmere Police Department to consult with the KDLA concerning appropriate measures to be taken in response to the destruction of its records.
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.
Chris Henson1939 Augustine AvenueCovington, KY 41014-1117
Robert CarranCity Attorney318 Garvey AvenueElsmere, KY 41018
Timothy GreenePolice Chief4501 Dixie HighwayElsmere, KY 41018
Footnotes
Footnotes
1 Mr. Henson identified Ms. Price by social security number and date of birth. This information is omitted in deference to her privacy interests.
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2 Pursuant to KRS 61.880(2)(b), Mr. Henson's appeal was placed on a thirty-day extension.
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3 Police incident reports are considered vital records with an indefinite retention period under the Local Government General Records Retention Schedule established by the State Archives and Records Commission. Under Records Series L4680 (copy attached) , they may only be destroyed after they are no longer useful.
4 Radio run tapes, used by local law enforcement agencies to record dispatch information, both telephone and radio, also have an indefinite retention period under Records Series L4697 of the Local Records Retention Schedule (copy attached) . The tapes may be erased and reused in 30 days if there is no investigation relating to information on the tape. If the tape is used in an investigation, it must be maintained until the case is resolved.
5 It is conceivable that such a record search might prove unreasonably burdensome within the meaning of KRS 61.872(6). If so, it is incumbent on the Department to establish an unreasonable burden by clear and convincing evidence.
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