Opinion
Opinion By: Albert B. Chandler III, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in denying both of the requests submitted by Tommy L. Jones on September 3, 2003, for handwritten notes taken by Officer Chris Boyer and Detective L. Schmidt during their investigation of a robbery for which Mr. Jones was arrested. More specifically, Mr. Jones requested any handwritten notes taken by Officer Boyer and Detective Schmidt during the "investigation and arrest of a Black Male, Name Tommy Lamont Jones," 1 who was charged with the robbery and assault of "a white female attorney (Name) Stephaine [sic] Pearce, on January 16, 1999 at the Citizen Plaza Building." Mr. Jones also requested any handwritten notes relating to "the arrest of a Black Female, Ca'Toya D. Gant," and "to the consent to search at 453 South 12th Street, on Feb[ruary] 26, 1999, and the charges of KRS 514.110 RSP (gun)."
In a combined response dated September 9, 2003, LMPD public information specialist Alicia M. Smiley claimed that the requested records were exempt from disclosure, citing KRS 61.878 (1)(a),(i), and (j) 2 in support of her position. According to Ms. Smiley, the notes in question "are considered preliminary documents and memoranda containing information of a personal nature" and, therefore, are not subject to inspection.
On appeal, Mr. Jones relies solely upon KRS 61.884 3 as authority for his argument that the notes fall within the parameters of the Open Records Act. In a response directed to this office following commencement of the instant appeal, Assistant Jefferson County Attorney Kris M. Carlton revised the initial response given by Ms. Smiley as follows:
It since has been determined that the initial denial was rendered under an incorrect exemption; it turns out that there are no records in the Louisville Metro Police Department that meet the description given by Mr. Jones with regard to Open Records request Log No. 20030042.
In light of this belated discovery, Ms. Carlton contends that Mr. Jones's appeal should be dismissed. Although the LMPD initially erred by relying upon an exception that presupposed the existence of the subject records, 4 we conclude that its actions were otherwise consistent with the Open Records Act and uphold the denial of Mr. Jones's request.
KRS 61.880 (1) sets forth the mandatory procedural guidelines with which a public agency must comply in responding to an Open Records request. Pursuant to this provision:
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 action.
However, the Attorney General has consistently recognized that a public agency cannot afford a requester access to a document that does not exist or is not in its possession or custody. See OAG 86-38, OAG 91-101, 93-ORD-51, 94-ORD-140, 96-ORD-164, 02-ORD-144, and 02-ORD-163. In resolving the issue of whether an agency can premise its denial of an open records request on the nonexistence of the records requested, the Attorney General has observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. 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. 5
When an agency denies the existence of requested documents, it is not our duty to investigate in order to locate the documents absent a reason to question the truthfulness of the agency's assertion. See 02-ORD-144 and 94-ORD-140. Here, we have no reason to doubt the response of the LMPD as corrected on appeal. To the contrary, under the Local Government Records Retention Schedule, Series L4660, a copy of which is attached hereto, the LMPD is only required to retain "Officer's Field Interview Notes" for a period of two years. According to the "Disposition Instructions" contained therein, the records should then be destroyed, lending further credibility to the LMPD's contention that the records did not exist at the time of Mr. Jones's request.
In 1994, the General Assembly substantially amended the Open Records Act, finding "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. Consistent with this explicit statutory recognition, there may be occasions when the Attorney General will require a public agency to substantiate its denial of an open records request by documenting its efforts to locate a record or explain why no record was generated. On the facts presented, however, further inquiry is not warranted.
As the events that are the subject of the investigatory notes at issue occurred on January 16, 1999, and February 26, 1999, respectively, and Mr. Jones did not request to inspect the notes until September 3, 2003, over two years after the LMPD had presumably destroyed the notes as instructed, the LMPD acted properly in denying Mr. Jones's request on that basis. Insofar as the LMPD cannot produce for inspection documents that are no longer in its possession or custody and it complied with the mandate to provide a written response to that effect, it fulfilled its obligation under the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). 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.
Tommy L. Jones, # 139869Northpoint Training CenterP.O. Box 479-Dorm 6Burgin, KY 40310
Jane DriskellRecords CustodianLouisville Metro Court611 West Jefferson StreetLouisville, KY 40202
William P. O'BrienDirector of Civil DivisionJefferson County Attorney's Office400 South Sixth StreetLouisville, KY 40202
Alicia M. SmileyPublic Information Specialist633 West Jefferson StreetLouisville, KY 40202
Footnotes
Footnotes
1 Although Mr. Jones provided the LMPD with both his social security number and that of Ms. Gant, this identifying information has been omitted in deference to their privacy interests.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 In relevant part,KRS 61.878 provides:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon court order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of a final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
(k)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 According to KRS 61.884: Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
4 To avoid this confusion in the future, the LMPD should verify the existence of records requested prior to issuing a response that would otherwise be legally sufficient.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
5 Recently, the Attorney General reaffirmed the validity of this principle in 02-ORD-163.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -