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 Jeffersontown Police Department violated the Kentucky Open Records Act in its disposition of the two separate but related requests of Olena L. De Luca for various records concerning the laser speed detection unit relied upon by Jeffersontown Police Officer R. David Miller in issuing a speeding citation to her on November 4, 2003. With the exception of a procedural violation, we conclude that the JPD responded to both requests in a manner consistent with the provisions of the Open Records Act for the reasons that follow.
In a facsimile directed to the JPD on November 5, 2003, Mrs. De Luca 1 requested to inspect the following records:
1. Officer Miller's Radar Training Certification(s).
2. The calibration and maintenance records for Radar Unit, (Laser J4275) used by Officer Miller on November []4, 2003.
3. Vehicle assignment records for vehicle assigned to Officer Miller on or about 04 November 2003.
4. Assignment record(s) for Laser unit J4275.
5. Calibration certificate(s), calibration test data, (including identification and maintenance records of tuning forks used for calibration) for radar unit "L4275."
6. Records regarding any and all speeding complaints received concerning the 10100 block of Linn Station Rd., or thereabouts, used to justify radar enforcement on Linn Station Rd.
7. All records of traffic citations issued by Officer Miller.
8. Inventory list of the models, makes and serial numbers of all radar units used by Jeffersontown Police Department.
9. The FCC (Federal Communications Commission) license issued to your agency.
Attached to her request was an "Access Refused" form divided into two columns, one in which to list the "Item" requested and another in which to indicate the "Reason for access denial."
Responding on behalf of the JPD, Lieutenant Colonel Peggy Emington, JPD Support Services Commander, authorized the release of the existing requested records as indicated on a standard JPD form entitled "Request For Release of Investigative Information" dated the same day as the initial request. Under the "Description of Information Released" section of that form, Lt. Colonel Emington advised Mrs. De Luca as follows: 2 "See attached list, everything released except # 2 and # 5. These 2 records do not exist." 3 Beyond that, the facts of this appeal are in dispute.
According to Mr. De Luca, Lt. Colonel Emington responded by sending "a fax of the marked-up submitted Open Record[s] Request" to him and following the fax with a telephone call "advising that an appointment had been arranged at the [JPD] station house, and that the records would be ready for inspection on [or] about November 10, 2003, adding that any inspection was conditioned on the availability of Ms. Emington to supervise the inspection, " 4 a "clear violation of KRS 61.876(1)." As observed by Mr. De Luca, "[n]o provisions in the published agency procedures" of the JPD indicate that "inspection access to public records" may be contingent upon the presence of a specific individual. 5
In contrast, Lt. Colonel Emington asserts that no one "sent Mr. De Luca a fax about anything relating to his November 5th request" or "told Mr. De Luca that he had an appointment on November 10th, 2003." Rather, the clerk called Mr. De Luca on November 7th, 2003, 6 "at 1141 hours to advise him his requested copies were ready at the police station" to which he responded that "he would be right up to the station." In Lt. Colonel Emington's view, he obviously did not think that he had an appointment since " he came to the police department [on] Sunday, November 9th, 2003[,] at 8:30 p.m. and signed for the copies. " Although Mr. De Luca initially asserts that he was at the JPD station house "on or about November 13th, 2003," he later contradicts himself by conceding that "compliance with the demanded rigid appointment schedule for records inspection" on that date "was impossible" as correctly observed by Lt. Colonel Emington. When he appeared at the JPD station house, Mr. De Luca "was presented with a manila envelope of unsolicited, unverified, uncertified COPIES of pages selected by persons unknown, purported to be copies of actual records," which, "in actuality constituted an attempt to deny and misdirect" him and "effectively subvert compliance 7 with the open records request for inspection of actual records in the custody of the [JPD]." As reiterated by Lt. Colonel Emington, however, Mr. De Luca "appeared" on Sunday, November 9th, not November 13th, and even upon receiving copies of the records that he was first allowed to inspect, "for which he was not charged a fee, Mr. De Luca did not object." Further, there "was no denial of information and no misdirection on anyone's part." Having considered Mr. De Luca's arguments in their entirety, we agree.
On November 12, 2003, Mrs. De Luca requested to inspect the following records:
1. Official Jeffersontown Police agency Standard Operating Procedure (SOP) manual.
2. Laser Technologies Inc. operating manual for laser speed detection unit J4275.
3. Official Jeffersontown Police agency Standard Operating Procedure (SOP) for all aspects of handling, use, maintenance and repair for any and all radar and laser speed detection instruments used for speed detection and issuance of citations.
4. Official Jeffersontown Police agency Standard Operating Procedure (SOP) for all aspects of training for proper operational use of any and all radar and laser speed detection devices.
5. Official Jeffersontown Police agency Standard Operating Procedure (SOP) for all aspects of field calibration/ function testing procedures for any and all radar and laser speed detection devices used for speed detection and issuance of citations.
6. Complete training records, grades and lesson plans for Officer Miller's radar/ laser training certifications.
7. Records regarding any and all speeding complaints issued resulting from the use of laser speed detection unit J4275.
8. Records of all individual traffic citations issued by Officer Miller using any radar/ laser speed detection devices.
9. Officer Miller's daily log from November []3, 2003, through [] November []5, 2003.
10. A copy of the FCC (Federal Communications Commission) license [] applicable to each specific radar and laser speed detection unit in the possession of Jeffersontown Police.
11. A copy of both sides of Police Officer Miller's copy of citation # KY05610000.
As indicated on the JPD release form dated November 17, 2003, 8 Lt. Colonel Emington authorized release of the requested records that were "issued/copied by" H. Moore on November 19, 2003, and subsequently released to Mr. De Luca. According to the issuing official, Mr. De Luca "Rec'd item # 2 (Laser Manual on 11-17-03)" but the "copies of requested SOP manual pages" were "never picked up." More specifically, the JPD responded as follows:
1. S.O.P. made available for viewing. Copy upon receipt of $ 40.00.
2. Copy upon receipt of $ 6.60.
3. included in request # 1
4. included in request # 1
5. included in request # 1
6. Department has no records
7. Request in unclear. A speeding complaint is received, not issued. Copies of complaints received were provided in 1st Open Records request.
8. Request must be specific. Will provide copies of any citations by name of offender.
9. Department does not have daily log from officers. Officer Miller's assignments, including vehicle and equipment, were provided in 1st Open Records request.
10. Copy of FCC license provided in 1st Open Records request. FCC license not required for laser detection units.
11. No such citation number.
As with the first request, Mr. De Luca and Lt. Colonel Emington have different recollections of the events that transpired after the JPD received the second request. Although Mr. De Luca alleges that Lt. Colonel Emington "demanded" his compliance with a "precise and rigid appointment schedule" in violation of KRS 61.872(5), Lt. Colonel Emington argues that Mr. De Luca "chose the appointment time" and she had "the right to ask Mr. De Luca when he would be arriving to inspect the SOP" since the hard copy is kept in secured storage and "is not otherwise available." In Mr. De Luca's view, Lt. Colonel Emington "relented somewhat" when he insisted that the requested records should be made available but stipulated that he return at 1:00 p.m. even though the records were not "in active use, in storage or [] otherwise available." According to Lt. Colonel Emington, he "appeared in person at the police department on Monday, November 17th, 2003[,] at approximately 10:30 a.m." and "demanded to see the records immediately" 9 as he "admits" in his statement of points. At that time, Mr. De Luca was given copies of any existing records "at no charge."
Upon giving Mr. De Luca her written response to the second request, however, Lt. Colonel Emington advised him of the copying fees "should he desire a copy [of the Laser Manual and the SOP] after viewing." In contrast, Mr. De Luca contends that Lt. Colonel Emington indicated that copies of the documents would be "made available" but only "upon receipt" of copying costs. Lt. Colonel Emington and a Ms. Perkins then escorted Mr. De Luca to the "public meeting room" so that he could view the SOP which Mr. De Luca describes as a "mass of unbound, jumbled papers." Over Mr. De Luca's "objection," Lt. Colonel Emington "again proffered what were purported to be previously prepared COPIES of the requested records for inspection, " a "blatant violation" of KRS 61.872. As emphasized by Lt. Colonel Emington, however, the copy provided to Mr. De Luca was the "original hard copy of the SOP suitable for copying which is why it is not in a binder" and the Act indicates that records on a computer can be "generated in hard copy format for inspection. " In addition, the SOP is 400 pages which Mr. De Luca knew from their telephone conversation and the pages "were certainly not jumbled." Rather, Mr. De Luca "wished to debate with [her] whether or not the law requires a separate FCC license for radar detectors. (It does not). Even if it did, this would not apply to laser detectors." According to Lt. Colonel Emington, "[w]hat Mr. De Luca inspected "was the written record generated by a computer from the SOP database" and it did not have to be certified to be a "true copy" under the Act. 10 Further, "[i]t is implied, if you come to [the JPD] and are handed our [SOP] to view by an Assistant Chief, it IS an official document."
Because Mr. De Luca requested copies of 44 pages from the SOP, 11 Lt. Colonel Emington advised him that the total cost would be $ 4.40 (44 pages @ $ .10 ea.). 12 Although she "had the right to collect the money up front," 13 it is not the "standard practice" of the JPD to do that. Rather, the requesting party makes the required payment upon receiving the copies. "Again, he was free to view the documents" and she "advised him, up front[,] what the cost would be if he requested any copies, which he did." At that time, Lt. Colonel Emington "refused to surrender the copies requested, and also refused to make yet another copy of the copies, under the guise of needing three days to copy the 44 pages" according to Mr. De Luca. In his estimation, Lt. Colonel Emington "was, at that moment, in violation of the Open Records Request statute," KRS 61.874(1). 14 Although Lt. Colonel Emington acknowledges informing Mr. De Luca "as witnessed by Lt. Colonel Weber, that it would be three days and he would be notified when the copies were ready," she emphasizes that Mr. De Luca originally requested to inspect the SOP and "[r]equesting the copies is a separate request." Further, Mr. De Luca "did not offer payment, and has still NOT paid for the copies."
As to Item # 8 of the second request, Lt. Colonel Emington advised Mr. De Luca that traffic citations are filed alphabetically and, as such, "the only way" she could retrieve specific citations is "by name" since she has "no way of determining which [citations] Office Miller wrote as a result of speed detection devices." Further, her "availability was in reference to arrest files." While Mr. De Luca is "more than welcome to go through every one of the files himself," that would require advance notice because the files "would have to be transferred from a secure location into the meeting room where he could inspect them with supervision." In Mr. De Luca's view, "[t]here is no way" for him "to produce the names of those persons to whom Officer Miller issued citations," without first having access to the requested records. As observed by Lt. Colonel Emington, however, the citations are "original, official documents that can be viewed only in the presence of an officer" and it is her "responsibility to ensure the integrity of those records by not allowing them to be destroyed or removed."
By facsimile dated November 20, 2003, Lt. Colonel Emington advised Mr. De Luca as follows:
The copies you requested on Monday, November 17, 2003[,] are ready. Upon receipt of $ 4.40 (44 pages @ 10 cents a page), you may pick them up at the [JPD]. If you would like us to mail them, please send $ 6.61, which is the $ 4.40 plus mailing costs. Please advise us today via fax how you would like to receive these copies. From this point forward, all communication between us will be in writing.
Having received no response, Lt. Colonel Emington directed a letter to Mr. De Luca on November 25, 2003. As reiterated by Lt. Colonel Emington:
We notified you on November 20, 2003[,] via fax that the copies you requested on Monday, November 17, 2003[,] were ready. If you would like us to mail them, please send $ 6.61, which is the $ 4.40 (44 pages @ 10 cents a page) plus mailing costs. If you would like to pick the copies up at our office, please let us know by fax or by mail as soon as possible.
"Demand[ing]" that the Attorney General "direct Ms. Emington and the [JPD] to cease and desist in the observed and experienced lawless conduct, and make available to the undersign[ed] and his wife the documents requested, and abide by the Open Records laws," Mr. De Luca now appeals from the perceived denial of his request. In his letter of appeal, Mr. De Luca characterizes the JPD's disposition of his first request as a "violation of KRS 61.876(1) and (2)" and its actions in relation to his second request as a "violation of KRS 61.872(5)," including a forty-eight point outline summarizing his version of the events that prompted the instant appeal in support of his position.
In supplemental correspondence received by this office after Mr. De Luca initiated the instant appeal from the JPD's "compliance" with his November 5th request, Fred E. Fischer, Jeffersontown City Attorney, responded on behalf of the JPD. According to Mr. Fischer, the JPD denied the existence of a document but its response cannot properly be characterized as a "refusal." Included with Mr. Fischer's response letter are copies of the JPD's original responses to both requests (Exhibits A and B), attached to which are copies of the records released to Mr. De Luca minus the copy of the Laser Manual that he acknowledges receiving. Attached as Exhibit C is a copy of the memorandum that Lt. Colonel Emington directed to Colonel Fred L. Roemele, the Chief of Police, regarding Mr. De Luca's " first statement of points" and her actions in relation thereto. Upon receiving notification of Mr. De Luca's appeal, Lt. Colonel Emington prepared a second memorandum addressing his "statement of points attendant to the appeal[,]" a copy of which is attached to the JPD's response as Exhibit D.
As evidenced by the foregoing factual summary, the positions of Lt. Colonel Emington and Mr. De Luca are irreconcilable based on the limited information of record. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
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 15 between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204. Since this appeal epitomizes the type of factual dispute that we are unable to resolve, our analysis necessarily focuses exclusively on the substantive legal issues presented beginning with the first request.
In 99-ORD-162, we addressed the related question of whether the Jefferson County Police Department properly relied upon KRS 61.878(1)(h) 16 in denying a similar request by Mrs. De Luca. 17 Consistent with 97-ORD-93, 18 we concluded that "maintenance and other records relating to the radar unit, and the officer's training to use the unit," did not satisfy the second requirement of KRS 61.878(1)(h), establishing that the records "were compiled in the process of detecting and investigating statutory and regulatory violations," much less the requirement that premature disclosure of the records would harm the JCPD. 99-ORD-162, pp. 3, 4. Accordingly, we found that the JCPD's reliance on the cited exception was misplaced. Of particular relevance here, we said:
It is the opinion of this office that JCPD fails to articulate a legally supportable basis for denying M[rs.] De Luca's request, and that the department must furnish her with all existing records that are responsive to her request. JCPD is not obligated to generate a list, 19 if one is not already in existence, of the models, makes and serial numbers of all radar []units being used, or to produce for inspection the actual unit used by Officer Whitely and the tuning forks used to calibrate the unit. As to the remaining records identified in M[rs]. De Luca's request, we conclude that they do not qualify for exclusion under KRS 61.878(1)(h), and that the fact the matter is before the courts does not suspend JCPD's duties under the Open Records Act.
Id., p. 2. To the extent applicable, this reasoning is equally determinative on the current facts.
With the exception of the "calibration and maintenance records" for radar unit J4275 and the "[c]alibration certificate(s), calibration test data," etc. for radar unit L4275, the JPD fulfilled its statutory duty by disclosing those existing records that were responsive to Mr. De Luca's first request. As to items # 2 and # 5, it stands to reason that the JPD "cannot produce for inspection and copying that which it does not have." 02-ORD-118, p. 3; 00-ORD-83. When an agency's denial of an open records request is premised upon the nonexistence of the requested records, the Attorney General has traditionally held that the denial does not constitute a violation of the Act "insofar as the agency cannot afford the requester access to a records or records that it does not possess." 03-ORD-031, p. 4. As consistently recognized by this office, "a public agency cannot afford a requester access to records that it does not have or which do not exist." 03-ORD-205, p. 3, citing 93-ORD-134; 99-ORD-98. Citing KRS 61.870(2) and 97-ORD-18, we have recognized that the right to inspect attaches only after the requested records have been "prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 10. However, the JPD's inability to produce the requested records due to their apparent nonexistence "is tantamount to a partial denial" of Mr. De Luca's request, and it was incumbent on the JPD to so indicate "in clear and direct terms." 02-ORD-145, p. 3; 01-ORD-38; 97-ORD-16; 96-ORD-164; OAG 91-101; OAG 86-38. An agency discharges its duty under the Open Records Act by affirmatively so indicating as the JPD did here. 03-ORD-205, p. 3, citing 99-ORD-150.
When some, but not all of the requested records are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided" as previously indicated. 03-ORD-031, p. 4, citing OAG 89-81. Consistent with the mandate of KRS 61.8715, 20 there may be occasions when the Attorney General requires an agency to substantiate its denial based on the nonexistence of records by demonstrating its efforts to locate the records or explaining why no records were generated. However, we do not believe that additional inquiry is warranted in this appeal. See 00-ORD-83. Mr. De Luca has not demonstrated that the JPD is legally obligated to maintain these categories of records nor has our research revealed any authority to that effect. In the absence of such authority, we conclude that the JPD did not violate the Act in denying Mr. De Luca access to the specified "calibration and maintenance records" on the cited basis. 21 Accordingly, the remaining issue is whether the JPD violated KRS 61.876(1) and 61.876(2) in its disposition of the first request as Mr. De Luca alleges.
In relevant part, KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to [e]nsure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
As we observed in 00-ORD-73, "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." Id., p. 6. In OAG 78-340, this office acknowledged that KRS 61.876 requires each public agency to adopt rules and regulations pertaining to open records requests and held that failure to do so constitutes a "violation" of the Open Records Act. 00-ORD-73, p. 6. It is unclear from the record before us whether the JPD rules and regulations were on display in a prominent location accessible to the public at the time of Mr. De Luca's request as required by this provision. If not, the JPD stands in violation of the Open Records Act and must comply with this mandate immediately. As to the alleged violation of KRS 61.876(1) , suffice it to say that the record refutes rather than supports Mr. De Luca's claim.
Pursuant to KRS 61.872(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
Although the date on which Mr. De Luca first "appeared" remains the subject of debate, the JPD release form indicates that Mr. De Luca signed for copies of the requested records on "[11]-09-03" at "2030 hrs." 22 or Sunday, November 9, 2003, at 8:30 p.m. as observed by Lt. Colonel Emington. Mr. De Luca does not deny receiving copies of the requested records but, instead, views preparation of the "unsolicited" copies as a denial of his request to inspect "actual records." In arriving to inspect the identified records after "the regular office hours" of the JPD and opting to accept copies without first exercising his right to inspect the records, however, Mr. De Luca forfeited his right to complain regarding the procedure employed by the JPD in this regard. Contrary to Mr. De Luca's implicit assertion, the JPD was not required to provide him with a certified copy of the requested records. In specifically denying such a request, we observed:
It is not, however, incumbent on the [public agency] to "certif[y] . . .the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act.
03-ORD-226, p. 7, citing 03-ORD-213, pp. 5-6.
Accordingly, the JPD did not violate the Act by declining to authenticate the copies provided to Mr. De Luca in response to the subject requests. Mr. De Luca concedes that the JPD did not assess copying charges, a gesture which undermines rather than substantiates his position that the JPD was attempting to subvert the intent of the Open Records Act. Because the actions of the JPD in responding to the first request were otherwise consistent with both the letter and spirit of the Act, the remaining question is whether the JPD complied with the provisions of the Act in its disposition of the second request.
As previously indicated, the analysis relating to denials based on the nonexistence of records applies with equal force to the "Complete training records, grades and lesson plans for Officer Miller's radar/ laser training certifications," his "daily log" for the specified dates, the FCC license for each "laser speed detection unit", 23 and the specified citation. In short, the JPD fulfilled its statutory obligation with respect to these records in affirmatively denying their existence absent any evidence that it is required to maintain records fitting the above descriptions. That being said, we turn our attention to the UltraLyte Laser Detection System operating manual, identified throughout this appeal as the Laser Manual, the JPD Standard Operating Procedure manual or SOP, and the traffic citations at the center of this dispute.
It is beyond dispute that Mr. De Luca requested and received a copy of the entire Laser Manual. Factual discrepancies aside, the JPD merely complied with KRS 61.874(3) and KRS 61.874(1), respectively, in prescribing a "reasonable" fee" of ten cents per page and requiring payment of the total amount due, $ 6.60, in advance. No more is required. Assuming that Mr. De Luca was first afforded the opportunity to inspect the Laser Manual as requested, the JPD fulfilled its statutory duty by following this procedure.
With respect to the SOP, Mr. De Luca argues that Lt. Colonel Emington required him to return later the same day "despite the fact that the records requested were not in "active use, in storage or not otherwise unavailable." Implicitly relying upon KRS 61.872(5) 24, Lt. Colonel Emington acknowledges that she requested time to retrieve the SOP because it is "kept in secured storage. " Absent evidence to the contrary, we conclude that Mr. De Luca's argument is without merit since Lt. Colonel Emington complied with this provision by designating "a place, time, and date" for Mr. De Luca to inspect the SOP within "three (3) days from receipt of [his] application."
In arguing that the Open Records Act requires "documents on a computer to be generated in hard copy format for inspection, " 25 Lt. Colonel Emington is presumably relying upon KRS 61.874(2)(a), pursuant to which "[a]gencies are not required to convert hard copy format records to electronic formats. " (Emphasis added). 99-ORD-38, p. 4. Although Mr. De Luca alleges that Lt. Colonel Emington "refused to present [him] with the actual SOP manual to inspect, " Lt. Colonel Emington characterizes the record that Mr. De Luca inspected as the "original hard copy of the SOP suitable for copying" with the necessary implication being that the SOP exists in electronic format but the JPD generated a hard copy for purposes of public inspection. Lt. Colonel Emington confirms as much, clarifying that she did not prepare a "copy" and Mr. De Luca inspected the " written record generated by a computer from the SOP database." In other words, the version of the SOP in question is a reproduction in the literal sense but is the "original" version of the manual in hard copy format that the JPD maintains in the normal course of performing its function as opposed to a copy generated to satisfy Mr. De Luca's request.
As we emphasized in 97-ORD-12, the "decision whether to conduct an on-site inspection of the records rests with" the requester and "'unreasonable restrictions upon inspection may not be imposed.'" Id., p. 2, citing OAG 89-81, p. 4. While continuing to recognize these principles, we have since held "that when there is a mechanism in place 26 for providing public access to public records, without resorting to on-site use of agency computers, the agency discharges its duty to [permit] access under KRS 61.872 by utilizing the alternative mechanism," and does not abridge the requester's right of inspection. 00-ORD-8, p. 3. 27 As this office did in 00-ORD-8, we reject the argument that a public agency, namely the JPD, "must permit unfettered access to its computers so that a requester [Mr. De Luca] can prove a negative: That the records he requested were not the records he received." Id., p. 7, citing 99-ORD-96. To reiterate, the JPD was not obligated to provide Mr. De Luca with certified copies.
In viewing Mr. De Luca's request for copies of specified pages from the SOP manual as a "separate request" justifying an additional three days in which to comply, however, Lt. Colonel Emington misconstrues the mandatory language of the governing provision, KRS 61.874(1), pursuant to which a requester " shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies . . ." (Emphasis added). If inspection is permitted, the "requester enjoys a corollary right to obtain copies" of the requested records. 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40. Although the JPD complied with the mandate of KRS 61.874(1) in all other respects, its failure to provide Mr. De Luca with copies of the specified pages from the SOP manual at the time he exercised his right of inspection constitutes a violation of this provision given the limited scope of his request. To avoid future procedural violations of the Act, we strongly encourage the JPD to review KRS 61.874(1). Upon receipt of the prescribed copying fee and mailing costs if applicable, the JPD should release the copies to Mr. De Luca consistent with its correspondence to that effect.
According to the JPD, Mr. De Luca's requests for "any and all" records regarding "speeding complaints issued resulting from the use of laser speed detection unit J2475" and "records of all traffic citations issued by Officer Miller using any radar/ laser" devices, are "unclear" and need to be more specific, respectively. In addressing "open-ended-any-and-all-records-that-relate-type of requests," this office has recognized that:
A request for any and all records that contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
01-ORD-177, p. 4, citing 99-ORD-14, p. 6. However, the Attorney General has also recognized that if an applicant cannot identify the records that he wishes to review with sufficient specificity, or wishes to extract information that has not already been compiled, he must be permitted to conduct "a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . ." 97-ORD-12, citing OAG 76-375.
Here, the burden apparently did not result from the incalculable number of potentially responsive records, but the inability of the JPD to identify and locate the precise records sought based on the description provided by Mr. De Luca. In 94-ORD-12, this office articulated a standard for determining whether a requester has described the records sought with sufficient precision. As observed by the Attorney General:
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. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for documents.
To clarify, the JPD did not deny Mr. De Luca's request as to the records in question but, rather, agreed to provide Mr. De Luca with copies of any traffic citations assuming that he supplies the name of the offender. On appeal, the JPD sufficiently justified this condition by explaining that traffic citations are filed alphabetically as it alluded in its initial response. As a precondition to inspection, Mr. De Luca must identify with "reasonably particularity" those documents that he wishes to inspect. 01-ORD-177, p. 5, citing OAG 91-58; 01-ORD-61. In lieu of exercising that right, he is entitled to conduct his own "fishing expedition" subject to the reasonable restrictions imposed by the JPD. As observed by Lt. Colonel Emington, the JPD offered Mr. De Luca the opportunity to do just that and merely asked him to specify a date and time during its regular business hours, a contention that Mr. De Luca does not dispute. In short, the JPD made every effort to accommodate Mr. De Luca in reference to these records. Because Mr. De Luca failed to identify the requested records with sufficient specificity to enable the JPD to identify, locate, and retrieve any responsive records that currently exist, its response did not violate the Open Records Act.
To summarize, it is the opinion of this office that the actions of the JPD relative to the subject requests were entirely consistent with the Open Records Act aside from the unwarranted delay in providing Mr. De Luca with copies of the specified pages from the SOP and the possible violation of KRS 61.876(2). Thus, we affirm its disposition of both requests.
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 proceeding.
Steven De Luca9016 Taylorsville Road # 183Louisville, KY 40299
Lt. Col. Peggy EmingtonJeffersontown Police Department10410 Taylorsville RoadLouisville, KY 40299
Fred E. Fischer, IIIFischer & Kelly713 W. Main Street, Ste. 400Louisville, KY 40202
Footnotes
Footnotes
1 Because "both open records requests were faxed to [the JPD] in the name of Olena De Luca and written in the first person," Lt. Colonel Emington called the De Luca residence and asked to speak with her on November 13, 2003, upon receiving her second request. In response, Mr. De Luca sent a copy of his wife's power of attorney to Lt. Colonel Emington via facsimile although "she didn't really need it" since all "[a]ll he had to do was make the request in his name, not hers." Mr. De Luca filed the instant appeal on his wife's behalf.
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2 According to the JPD release form, this "information" was released to Mrs. De Luca.
3 Lt. Colonel Emington also indicated that the "records do not exist" as the reason for denying access on the attached form provided by Mr. De Luca.
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4 Lt. Colonel Emington denies this assertion, emphasizing that the audiotape of the telephone conversation between Ms. Thomas and Mr. De Luca supports her position that Mr. De Luca was not required to make an appointment nor was her presence required for inspection of the records.
5 To the contrary, such a provision is presumably not included among the published procedures of the JPD because it would constitute a violation of the Act.
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6 According to the JPD release form, the requested records were "issued/copied by" Lt. Colonel Emington and the clerk, C. Thomas, on November 7, 2003.
7 Although he does not referenceKRS 61.880(4), presumably Mr. De Luca is implicitly relying upon this provision, pursuant to which:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
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8 Although the request is dated November 12, 2003, Lt. Colonel Emington explains that Mr. De Luca did not fax the request to the JPD "until 5:23 p.m., after the close of normal office hours." Accordingly, she did not receive the request until the next morning at which point she called "to offer him the inspection almost immediately."
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9 Lt. Colonel Emington acknowledges informing Mr. De Luca that she needed notice to make the SOP and Laser Manual available "due to the shortage of manpower." However, she agreed to "schedule a time" and "make available the documents and space." At Mr. De Luca's suggestion, she retrieved the SOP from storage so that he could view it at 1:00 p.m. that day and "he did, in fact," view it at that time.
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10 Mr. De Luca argues that he requested the opportunity to inspect "original identified RECORDS, not copies of what Ms. Emington purported to be" those records that "were not certified or authenticated in any way as being true copies of the actual records requested for inspection. "
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11 Lt. Colonel Emington provided Mr. De Luca with post-it notes so that he could mark the pages that he was requesting to have copied.
12 According to Lt. Colonel Emington, she advised Mr. De Luca that "if he wanted a copy of the Laser Manual, before or after he viewed it," the cost would be $ 6.60 (66 pages @ $ .10 ea.). Although he "agreed and left the building," Mr. De Luca returned a few minutes later and advised a clerk that he wanted a copy of the manual which he received upon tendering that amount to the clerk.
13 In relevant part, KRS 61.874(1) provides: "When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1) must be read in conjunction with KRS 61.874(3), pursuant to which: "The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, . . ." In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable copying charge under the Open Records Act.
14 KRS 61.874(1) provides:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
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15 "TheOpen Records Act contemplates a spirit of cooperation between the parties." 00-ORD-73, p. 5. As we observed in 93-ORD-15:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
00-ORD-73, p. 5-6.
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16 Pursuant toKRS 61.878(1)(h), the following records are exempt from disclosure:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . The exemptions provided by this subsection shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
17 In that instance, Mrs. De Luca requested toinspect:
1. The radar unit's calibration and maintenance records;
2. The officer's radar training certification;
3. The tuning forks used to calibrate the radar unit and their calibration certificates;
4. The actual radar unit used by the officer (Whitely) in the above-entitled offense
5. The agency's FCC (Federal Communications Commission) license;
6. List of models, makes, and serial numbers of all radar units being used by that agency.
18 At page 5 of that decision, we reiterated that local law enforcement agencies "are required to make available for public inspection, subject to applicable statutory exceptions, any records they maintain or [that] are compiled incident to or [that result from] the agency's daily operation" that reflect how the agency is performing its public function. OAG 91-131; OAG 77-102.
19 As this office has repeatedly recognized, requests for information, as distinguished from records, are outside the scope of the Open Records Act. 97-ORD-93, p. 5, citing 96-ORD-12. Our position is premised on the notion that the Open Records Act addresses only inspection of records and does "not require public agencies or officials to provide or compile specific information to conform to the parameters of a request." Id., citing OAG 89-77. A public agency "is not obligated to compile a list or create a record, if one does not already exist, to satisfy an open records request." Id., citing 96-ORD-251.
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20 Pursuant toKRS 61.8715:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
21 Although Mr. De Luca does not specifically address this issue in relation to items # 6, # 9, # 10 (as to laser detection units) and # 11 of the second request, the existence of which is also denied by the JPD, we find this reasoning to be equally dispositive as to those records.
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22 Although the issuing official identified Mrs. De Luca as the individual to whom the information was released, the fact that Mr. De Luca had not yet clarified that he was acting on his wife's behalf presumably explains this apparent inconsistency.
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23 According to the JPD, it provided Mr. De Luca with a copy of its FCC license in response to the first request. As this assertion is not only undisputed but also supported by the record (it is included among the copies of responsive documents attached as Exhibit A), further elaboration is unwarranted.
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24 Pursuant toKRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
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25 To the contrary, "[n]onexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records." KRS 61.874(2)(a).
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26 As is the case here, the alternative mechanism was "printing out, in hard copy format, " the responsive record. 00-ORD-8, p. 7.
27 In that decision, the arguments raised by the appellant led us to ask: "What are, conceptually speaking, the 'original documents' where we are dealing with electronically stored records, and how can they, practically speaking, be inspected if not by means of accessing the agency's computers?" 00-ORD-8, p. 7.
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