Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Earlington Police Department and Pennyrile Narcotics Task Force violated the Open Records Act in the disposition of John Yarbrough's January 28, 2004 request for records and information relating to the identity of a police officer who was present at a Kentucky State Police road check, at which Mr. Yarbrough was stopped, at approximately 12:00 a.m. on May 4, 2002. For the reasons that follow, we find that the actions of these agencies in disposing of Mr. Yarbrough's request was inconsistent with the provisions of KRS 61.870 to 61.884 described below.
Following an unsuccessful attempt to ascertain the identity of the unknown police officer from the Kentucky State Police by an open records request dated October 3, 2003, and a suggestion from that agency's records custodian, Terry D. Edwards, that he might be able to "acquire the name of this officer through appropriate open records requests of the Earlington Police Department," 1 Mr. Yarbrough submitted a single written request to the Pennyrile Narcotics Task Force and the Earlington Police Department, 103 W. Main Street, Earlington, Kentucky. 2 In it, he requested access to:
1. [T]he name and rank of the officer present at a KSP roadcheck, where I was stopped, near midnight on May 4, 2002 on KY 2171 (Earlington Bypass). This officer was wearing a black swat team like outfit not a KSP trooper's uniform as were KSP troopers J. McWhorter and J. Komar.
2. [T]he record of the identity of the vehicle he was using.
3. [T]he record of the other roadchecks or other stops where this officer was present that night.
4. [T]he record of any correspondence between this officer or his agency and KSP records concerning the release of this officer's identity or refusal to release his identity.
Mr. Yarbrough indicated that Terry Edwards had advised him to address his "open records request to this office," identifying Mr. Edwards as KSP's Official Custodian of Records. On February 13, Mr. Yarbrough submitted a written inquiry to the Pennyrile Narcotics Task Force and Earlington Police Department in an attempt to ascertain the status of his request, enclosing a copy of that request. This correspondence went unanswered prompting him to initiate an open records appeal.
Upon receipt of this office's notification of Mr. Yarbrough's appeal, Christopher B. Oglesby, Earlington City Attorney, issued the following response:
Pennyrile Narcotics Task Force is an entity totally separate and distinct from Earlington Police Department. In Mr. Yarbrough's January 28, 2004 request which was addressed to both Pennyrile Narcotics Task Force and Earlington Police Department and apparently delivered to the city clerk's office in Earlington, he requests information about an "officer" wearing a "swat team like outfit" . The request does not distinguish between an officer of Pennyrile Narcotics Task Force or an officer of Earlington Police Department. This is much too vague and unclear to be enforceable under Kentucky's open records law.
Mr. Oglesby noted that this request "does not even request disclosure of a 'public record' as defined in KRS 61.870(2)," and characterized Mr. Yarbrough's remaining requests as "too vague and unclear to be enforceable. " On this basis, "and in light of the clear and convincing evidence of the unreasonable burden being placed on police agencies in violation of KRS 61.872 as evidenced by the KSP letter dated October 7, 2003 . . .," Mr. Oglesby urged this office to dismiss Mr. Yarbrough's appeal.
Shortly thereafter, Mr. Yarbrough formally apologized for his error, noting that his request "was intended for Pennyrile Narcotics Task Force, located at the Earlington Police Department, not to EPD itself." Continuing, he observed:
In the new 2004-2005 phone book, just arrived, I noticed PNTF is no longer listed. If I were to complain, it would be because EPD failed to help me redirect my January 28, 2004 request to PNTF, in a timely manner, if PNTF does have a new address.
In closing, he restated his complaint relative to the Pennyrile Narcotics Task Force's failure to respond to his request.
On March 10, 2004, Lori Blakely, Deputy Director of the Pennyrile Narcotics Task Force, notified the undersigned that in response to Mr. Yarbrough's appeal, and this office's notification of same, she had "searched our database and arrest records, and [did] not find any information pertaining to Mr. Yarbrough." Based on the foregoing, we must conclude that neither agency fully discharged its obligations under the Open Records Act.
With reference to the Earlington Police Department, we find that the Department violated KRS 61.880(1) in failing to respond to Mr. Yarbrough's January 28 open records request. That statute 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. 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.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 857 (1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the court concluded, does not even remotely compl[y] with the requirements of the Act . . . ." Id. The failure to issue any response constitutes a clear violation of KRS 61.880(1).
The Earlington Police Department does not dispute that Mr. Yarbrough's request was hand-delivered to an employee identified as Pam Smith on January 28, 2004 and offers no explanation for its failure to respond. "The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals has observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper, Ky. App., 2000-CA-000714-MR (3/30/01) pet. for rehearing denied July 20, 2001 (unpublished opinion holding that the failure to issue a timely response to an open records request was not excused by the requester's failure to identify the request as a request made under KRS 61.870 et seq. ) 3 The Department's apparent perception that Mr. Yarbrough's request was improperly framed or misdirected did not relieve it of its duty to respond in writing and within three business days. As suggested by the Court of Appeals, such response may have consisted of a demand that he frame his request with greater specificity and as a request for a public record rather than a request for information. 4 Alternatively, the response may have consisted of notification to Mr. Yarbrough that the Pennyrile Narcotics Task Force, which he erroneously believed was located on or near the same premises as the Earlington Police Department, was located at 511 South Main Street, Courthouse Annex, P.O. Box 4162, Hopkinsville, KY 42240. As noted, the Department's failure to respond constituted a violation of KRS 61.880(1).
With reference to the Pennyrile Narcotics Task Force, we find that error cannot be assigned for failure to respond per KRS 61.880(1) inasmuch as that agency apparently had no knowledge of Mr. Yarbrough's appeal until it received this office's notification of receipt of same. At that juncture, the Task Force conducted a timely search of its "database and arrest records . . . [for] information pertaining to John Yarbrough." While we commend the Task Force for its prompt action, we would suggest that the search it conducted was unlikely to yield records responsive to Mr. Yarbrough's request for the identity of the officer, who may be employed by that agency, and who was present at a KSP road check at KY 2171 (Earlington Bypass) on May 4, 2002, near midnight, and was wearing a black swat team like outfit. Although we do not speculate on the recordkeeping series by which said officer's identity might be determined, it is reasonable to assume that dispatch logs or radio transmission logs might contain such information. We urge the Task Force to conduct a search of its records utilizing this and any other search method that stands a greater likelihood of yielding successful results. See 95-ORD-96. 5 If its search proves unsuccessful, the Task Force should promptly so notify Mr. Yarbrough. OAG 86-38; OAG 91-101; 96-ORD-101; 97-ORD-180; 02-ORD-187; 02-ORD-208.
Turning to the question of whether Mr. Yarbrough's request was improperly formulated, we find that only one request, numerical item one, was defective. As has been observed, a request for the name and rank of a police officer is a request for information as opposed to a request for a reasonably described public record. 95-ORD-131, p. 2 ("Requests for information, as distinguished from records, are outside the scope of the open records provisions"). Mr. Yarbrough may wish to reformulate his request in a manner consistent with footnote 4, above, and resubmit that request to KSP, the Earlington Police Department, and the Pennyrile Narcotics Task Force. We are not persuaded that his remaining requests are impermissibly vague. Based on the correspondence from KSP's records custodian to Mr. Yarbrough, the subject officer's identity has been established. If a request for a record identifying that officer is formulated and tendered to the appropriate agency, 6 we believe the remaining records request can be satisfied if responsive records exist. If responsive records do not exist, it is again incumbent on that agency to affirmatively so state.
Finally, we find that the Earlington Police Department has not established, by clear and convincing evidence, that Mr. Yarbrough's request places an unreasonable burden on that agency or is intended to disrupt other essential functions of the Department. 7 In support, we attach hereto and incorporate by reference 04-ORD-028, analyzing the degree of specificity in establishing an undue burden contemplated by that statute, and note that the record on appeal is devoid of proof of any previous open records requests submitted by Mr. Yarbrough to the Department, or, for that matter, the Task Force. The Department cannot invoke KRS 61.872(6) on behalf of a sister agency, here KSP, insofar as it is not the official custodian of that agency's records. It is, rather, for KSP to build a case under KRS 61.872(6) if it believes invocation of that provision is warranted. A single request consisting of four subparts surely cannot be considered "an extreme and unreasonable demand[] on [the Department's] time." OAG 76-375, p. 4.
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.
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Chief Craig PattersonEarlington Police Dept.103 W. Main StreetEarlington, KY 42410
Christopher OglesbyThe Gordon House220 N. Main StreetMadisonville, KY 42431
Cheyenne AlbroPennyrile Narcotics Task ForceP.O. Box 4162Hopkinsville, KY 42241
Lori BlakelyDeputy DirectorPennyrile Narcotics Task ForceP.O. Box 4162Hopkinsville, KY 42241
Terry D. EdwardsLegal BranchKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 The full text of Mr. Edwards' October 7 response follows:
As for the name of the unidentified officer (which as I explained to you in our telephone conversation was not, in fact, a request for a public record but rather a request for information), as you recall, my "promise" to you was to release the name of the officer to you ". . . if there were no objections to releasing this information by anyone at Post 2, at the agency where the officer worked or by the officer . . . ." As of this date I have not received permission from all parties to release the officer's name to you. Again, . . . a request for information that does not qualify as a "public record" under the statutes does not require a response under the Open Records Act to begin with. As I originally indicated, should all parties agree, I will provide you with this name. It may be that you could acquire the name of this officer through appropriate open records requests of the Earlington Police Department.
2 A handwritten notation on Mr. Yarbrough's request indicates that it was "handed to Pam Smith Jan. 28, 2004 11:55 AM." A subsequent handwritten notation indicates that Mr. Yarbrough "called Pam Smith Feb. 10, 04 [and] she said she delivered it to them."
3 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request.
4 For example, "any dispatch log, radio transmission logs, or other record identifying the officer employed by your agency who was present at a KSP road check at KY 2171 (Earlington Bypass) on May 4, 2002, near midnight, and who was wearing a black swat team like outfit unlike the KSP troopers' uniforms worn by the other officers present."
5 It is 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." 95-ORD-96, p. 7 (citation omitted).
6 Either KSP, the Earlington Police Department, or the Pennyrile Narcotics Task Force.
7 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.