Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Louisville Police Department's response to the request of Jerome Effinger, dated August 19, 2002, for "a copy of the Search Warrant and a copy of the Affidavit for a Search Warrant . . . [for] 4901 Quail Ct . . . Louisville, Kentucky . . . some where in the last of March or early April, 2000," violated the Open Records Act.
By letter dated August 23, 2002, Alicia Smiley responded on behalf of the Department, advising Mr. Effinger that the requested records were not located at the Louisville Police Department and that the search was done by the Jefferson County Police Department and provided him with the name and address of that that agency's custodian of records.
We are asked to determine whether the response of the Department was proper and timely. For the reasons that follow, we conclude that the response was timely and in full compliance with the requirements of the Act and prior decisions of this office.
After receipt of the Notification of appeal, Kris Carlton, Assistant Director of Law, provided this office with a response to the issues raised in the appeal. In reference to the timeliness of the Department's response to Mr. Effinger's request, Ms. Carleton indicated that Mr. Effinger's request, dated August 19, 2002, was received by the agency on August 20, 2000, and responded to by letter dated August 23, 2002. Under these facts, the Department's response was timely as it was within three business days after receipt of the request.
Addressing the substantive issue, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Mr. Effinger was advised that the Department did not have the records he requested. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Moreover, KRS 61.872 (4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
The Department's response notified Mr. Effinger that the search in question was done by the Jefferson County Police Department and provided him with the name and address of that agency's custodian of records. Thus, we conclude that the Department's response was in compliance with the requirements of KRS 61.872(4) and 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.
Jerome Effinger, # 151756Northpoint Training CenterP.O. Box 479, Dorm # 4Burgin, KY 40310
Joyce A. BoblittLegal Advisor's OfficeCity of LouisvilleDivision of Police633 W. Jefferson Street Louisville, KY 40202-2786
Stephanie HarrisAssistant Director of Law City of LouisvilleRoom 200. City HallLouisville KY 40202-2771