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 Lexington-Fayette Urban County Government Division of Police violated the Open Records Act in the disposition of William A. Mack's February 20, 2003, request for "cop[ies] of 'Radio Transmissions' to and from all Officers and Detectives involved in the search of 759 Maple Avenue, Lexington, Kentucky 40505" and "'Radio Transmissions' that were transmitted to the 'Dispatch' Center in regards [sic] to the search of . . . 759 Maple Avenue, Lexington, Kentucky 40505 [that occurred on] 8-29-02, @ 0930." For the reasons that follow, we affirm in full the Division's disposition of Mr. Mack's request.
On February 26, 2003, Mr. Mack initiated this appeal to the Attorney General utilizing a typewritten form popular among prison inmates that identifies alleged agency violations by "check[] off in the referral box." Mr. Mack "checked off":
KRS 61.880(1)The Three Days to answer requirement.
KRS 61.872(2)(B) 3Any Non-existing Records.
KRS 61.872(2)Application to Inspect.
KRS 61.884Any person shall have access to any public record of said.
KRS 61.870(5)Acting as the "Official Custodian" who is accountable.
He did not offer any accompanying explanation.
In correspondence directed to this office following commencement of Mr. Mack's appeal, LFUCG Corporate Counsel Michael R. Sanner responded to these allegations. Mr. Sanner advised:
Mr. Mack's request, which was authored on February 20, 2003, was received by the Lexington-Fayette Urban County Government Division of Police on February 24, 2003. On that same day, Officer Chris Chancellor responded to Mr. Mack's request.
In his response, Officer Chancellor stated the Communications Unit of the Division of Police maintains copies of audio recordings for 60 days. The recordings Mr. Mack requested had been destroyed. Officer Chancellor informed Mr. Mack that a copy of a dispatch printout could be made at a cost of $ .10 per page. Officer Chancellor informed Mr. Mack that the total cost of the printout would be $ .90 (9 pages @ $ .10 per page). Officer Chancellor informed Mr. Mack that the copies were available at the Division of Police headquarters, 150 East Main Street, Lexington, Kentucky.
On March 10, 2003, the Department of Law sent a supplemental response to Mr. Mack informing him that pursuant to KRS 61.872(3)(b), since he was not a resident of Fayette County, he was entitled to receive copies of his requested documents, upon receipt of $ 1.73 (9 copies @ $ .10 per copy + $ .83 for postage) .
On this basis, Mr. Sanner urged this office to affirm the Division's actions. We find no error in the Division's disposition of Mr. Mack's request.
The allegations of Mr. Mack's open records appeal are meritless and the complaint itself premature. We have confirmed that the appropriate retention period for radio run tapes, described as tapes "used to record all dispatch information whether it be by telephone or radio, " is sixty days. See Records Retention Schedule - Lexington/Fayette Urban County Government Public Safety Police Department, Series L4848 (copy enclosed). The records to which Mr. Mack requested access were "erased and reused" in the normal course of business and consistent with applicable retention requirements. The Division's denial of Mr. Mack's request for these records raises neither records retention nor records access issues. As Mr. Sanner correctly observes, a public agency cannot produce for inspection or copying a record which no longer exists. Where, as here, an adequate explanation for the nonexistence of the requested records is provided, no additional inquiry is warranted. 94-ORD-140; KRS 61.8715.
The Division suggested an alternative means of accessing the information Mr. Mack apparently seeks, namely, dispatch printouts for the date on which the search occurred, and agreed to provide him with copies of the printouts upon prepayment of a reasonable copying charge of $ .10 per page and postage charges. The requirement of prepayment for copies, including postage charges, is fully supported by law. KRS 61.872(3)(b);KRS 61.874(1). If Mr. Mack wishes to avail himself of this alternative means of accessing the information he seeks, he is free to do so under the conditions set forth in Officer Chancellors' response.
We urge Mr. Mack to exercise restraint in initiating future open records appeals. His request, dated February 20, did not reach the Division until February 24. The Division's response, statutorily required to be issued on February 27, 2003, was issued immediately, but that response crossed Mr. Mack's February 26 appeal to this office in the mail. Mr. Mack made no effort to notify this office that he received a timely response to his request. Mr. Mack's haste and subsequent inaction resulted in the needless expenditure of state and local agency resources.
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.
William A. Mack, # 117136Northpoint Training CenterP.O. Box 479, Dorm 4Burgin, KY 40310
Mike SannerDepartment of Law LFUCG150 East Main StreetLexington, KY 40507 Anthany Beatty, ChiefLFUCG Division of Police150 East Main StreetLexington, KY 40507