Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in partially denying the request of Demetrick Boyd, an inmate at Eastern Kentucky Correctional Complex, "to inspect Case No. 02-1517, Narcotics Number 1527, Case No. 02-10539, 02-10538." Although we are unable to resolve the factual issue of whether the LMPD received Mr. Boyd's original request, we conclude that upon receiving notification of this appeal and the copy of Mr. Boyd's original request attached thereto, the LMPD properly indicated a willingness to mail copies of the existing requested records to Mr. Boyd upon receipt of reasonable copying fees and postage and, with respect to "Narcotics Number 1527," more specific information.
On a standard request form dated December 21, 2003, Mr. Boyd indicated that he was directing the subject request to the "Louisville Division of Police." Having received no response, he initiated this appeal by letter dated January 12, 2004. 1 On appeal, Mr. Boyd challenges the "denial" of his request "pursuant to KRS 61.880(1), (2) and KRS 61.870 to 61.884" and, further alleges that the LMPD "has violated KRS 61.880(1) by failing to answer within three days."
Upon receiving the "Notification to Agency of Receipt of Open Records Appeal" and the attached copy of Mr. Boyd's original request, Kris M. Carlton, Assistant Jefferson County Attorney, responded on behalf of the Louisville Metro Government. According to Ms. Carlton:
Mr. Boyd claims that Louisville Metro did not respond to his request within the statutorily-prescribed period of three business days of the date of his initial request, which was indicated to be December 21, 2003. His attached request was on a standard form entitled "Commonwealth of Kentucky Request to Inspect Public Records re: KRS Ch. 61," that presumably was provided to him by the [EKCC]. The form indicated that he was making his request of the Louisville Division of Police. However, there was no address, nor any indication of how this was sent.
According to the [LMPD], there is no record of having received Mr. Boyd's request until the Department was faxed a copy (by me) on January 27. The response to him would then be due by January 30. As soon as LMPD is able to locate the requested documents for review for possible disclosure, Mr. Boyd, and your office, will receive a copy of the Department's response.
In a response letter dated January 29, 2004, Alicia M. Smiley, LMPD Public Information Specialist, advised Mr. Boyd that "his initial request did not reach [its] office until LMPD was contacted by the Kentucky Attorney General's Office, thereby resulting in a delayed response." As observed by Ms. Smiley:
[The LMPD] office has been advised that the forty-seven pages provided to your attorney during the discovery portion of your trial for Case No. 02-1517, are available for a pre-paid fee of $ .10 per page in addition to $ .37 postage. Please forward a check or money order, payable to Louisville Metro Police, in the amount of $ 5.07 and this information will be mailed to your attention.
Our Metro Narcotics Unit does not maintain case files based upon five digit numbers. No records or cases exist under the numbers you have provided, 02-10539 or 02-10538. Also[,] Metro Narcotics Unit does not maintain "narcotics numbers" and more specific information would be needed to assist with your request for Narcotics Number 1527. If there are further questions you may write or call (502) 574-7761.
For the reasons that follow, we affirm the LMPD's disposition of Mr. Boyd's request.
KRS 61.880(1), in relevant part, 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.
In his letter of appeal, Mr. Boyd alleges that the LMPD violated this provision in failing to respond to his request within the designated time period. According to the LMPD, however, it became aware of his request only upon receiving notification of the instant appeal. With respect to disputes of this nature between a requester and a public agency, the Attorney General has said:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204. Likewise, the record in this appeal does not contain sufficient information concerning the actual delivery and receipt of Mr. Boyd's open records request to enable us to resolve the current factual dispute.
Turning our attention to the substantive issues presented, the LMPD's disposition of the subject request cannot properly be characterized as a denial. To the contrary, the LMPD has agreed to provide a copy of the file for Case No. 02-1517 to Mr. Boyd upon his prepayment of reasonable copying fees and postage. 2 Pursuant to KRS 61.874(1), the records custodian "may require a written request and advance payment of the prescribed fee, including postage where appropriate." Accordingly, the LMPD did not violate the Act in making disclosure of the specified record contingent upon satisfaction of this requirement.
With regard to "Narcotics Number 1527," the LMPD has simply requested more specific information so that it can identify and locate the record assuming that such a record exists. Since the LMPD does not have any records that are identified by "narcotics numbers," such a request is both reasonable and consistent with the provisions of the Act. At page 3 of 94-ORD-12, we observed:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available.
See 01-ORD-117. Based on the foregoing, we conclude that the LMPD was not attempting to subvert the intent of the Act in asking Mr. Boyd to describe the requested record with more precision.
In light of these determinations, the question becomes whether the LMPD fulfilled its obligation under the Act relative to the records identified by Mr. Boyd as "Case No[s]. 02-10539, 02-10538." According to the LMPD, the Metro Narcotics Unit does not use five digit numbers to identify its case files with the necessary implication being that no "records or cases" fitting the description provided by Mr. Boyd exist. As the Attorney General has consistently recognized, a public agency is not required to honor a request for nonexistent records. 03-ORD-205; 02-ORD-118; OAG 83-111; OAG 87-54; OAG 91-112; 98-ORD-200; 99-ORD-198. It stands to reason that a public agency such as the LMPD cannot afford a requester access to documents that it does not have or which do not exist. 03-ORD-25, p. 3, citing 99-ORD-98. By affirmatively so indicating, the agency discharges its duty under the Open Records Act. Id., citing 99-ORD-150. When the basis for an agency denial of an open records request is that the requested record was never created, as is the case here, and the argument presented supports that position, further inquiry is not warranted under KRS 61.8715. 3 While we cannot account for the discrepancy between how Mr. Boyd identifies the records in question and the way in which the Metro Narcotics Unit of the LMPD apparently labels its case files, we find that the LMPD did not violate the Open Records Act in denying Mr. Boyd's request for nonexistent records.
A party aggrieved by this decision may appeal it by initiating an 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 proceedings.
Demetrick Boyd, # 126765Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
William P. O'BrianJefferson County Attorney's Office1001 Fiscal Court Building531 Court PlaceLouisville, KY 40202
Kris M. CarltonJefferson County Attorney's Office1001 Fiscal Court Building531 Court PlaceLouisville, KY 40202
Dennis SimsLouisville Metro Police Department633 West JeffersonLouisville, KY 40202
Footnotes
Footnotes
1 Although his letter is dated January 12, 2004, it was not received in this office until January 22, 2004.
2 Although Mr. Boyd requests to inspect the specified records, "an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-ORD-105, p. 5; 98-ORD-157. Although KRS 61.872(3)(b) contemplates access by either on-site inspection or receipt of copies through the mail, the former method "may pose a problem in the restrictive environment of a correctional facility" since an inmate obviously "cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." Id., p. 6. Because KRS 61.874(1) does not contain a waiver of the prepayment requirement for inmates, it is "entirely proper for the facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail." Id.
3 KRS 61.8715 recognizes an "essential relationship" between the intent of the Open Records Act and that of the statutory sections dealing with the management of public records, and has been construed by this office to warrant inquiry by the Department for Libraries and Archives into the records management policies of agencies when public records cannot be located or have been destroyed.