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 actions of the Calvert City Police Department relative to the request of Steve Robey for copies of all service, maintenance and calibration records associated "with the current video unit(s) used in the patrol car (s) of the [CCPD]" and "legible copies of all citations" issued from "Patrol Car Unit 2001" and/or "by Officer Ronnie Harvell" from September 4, 2003, to September 24, 2003, violated the Kentucky Open Records Act. Although its initial failure to respond constitutes a procedural violation of the Open Records Act, the CCPD subsequently discharged its statutory duty by providing Mr. Robey with copies of the specified citations and affirmatively indicating that the former category of requested records do not exist or are not in its possession.
By letter directed to Calvert City Police Chief David Elliott on March 19, 2004, Mr. Robey requested copies of the following documents:
1. All documents concerning all service calls requested and/or received for the current video unit(s) used in the patrol car (s) of the Calvert City Police Department.
2. All maintenance logs or maintenance histories, or maintenance documentation associated with the current video unit(s) used in the patrol car (s) of the Calvert City Police Department.
3. All schedules or documentation regarding the calibration of the video unit(s) used in the patrol car (s) of the Calvert City Police Department.
4. Legible copies of all citations issued from Patrol Car Unit 2001 for dates September 4, 2003 through September 24, 2003.
5. Legible copies of all citations issued by Officer Ronnie Harvell for dates September 4, 2003 through September 24, 2003.
Having received "no response whatsoever" from the CCPD, Mr. Robey initiated this appeal.
Upon receiving notification of Mr. Robey's appeal, Chief Elliott notified this office via telephone that his failure to respond was attributable to a perceived conflict with a court order involving the records requested rather than an effort to subvert the intent of the Open Records Act and expressed a willingness to comply with the request to the extent feasible. In a letter received by this office on April 7, 2004, a copy of which was directed to Mr. Robey, Chief Elliott issued the following response:
As per our conversation on April 5, 2004[,] I am writing you this letter to inform you of [the status] of the information that was requested. Again[,] I apologize for the misunderstanding [resulting from] the court order that was issued to my department.
In reference to documents concerning all service calls requested and maintenance logs, the video camera was purchased on 02-18-2003. Therefore[,] we do not have any of the above documents. I have enclosed an invoice from MPH Industries showing the date the system was ordered.
I have also enclosed copies of all citations issued from the Patrol Car Unit 2001 for the dates of September 4, 2003 through September 24, 2003. This unit is assigned to Officer Ronnie Harvell.
Again[,] I do apologize to you and Mr. Steve P. Robey for the inconvenience and the misunderstanding.
For the reasons that follow, we conclude that the response of the CCPD was procedurally deficient but substantively correct.
KRS 61.880(1) sets forth the mandatory procedural guidelines with which an agency must comply in responding to a request submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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 records and a brief explanation of how the exception applies to the records withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
As the Attorney General has consistently recognized, these requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Discharge of these duties is mandatory, and is as much of a legal obligation owed by a public agency as the provision of other services to the public. Id. Although the initial failure of the CCPD to respond apparently resulted from an honest misunderstanding, its inaction constitutes a procedural violation of the Open Records Act regardless of the reason. To ensure compliance with the Act, we urge the CCPD to review this provision before responding to future requests.
Turning to the substantive issues presented by this appeal, the CCPD has provided Mr. Robey with copies of the specified citations. 1 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." 03-ORD-087. Consistent with this mandate, the Attorney General has long recognized that if access to public records to which access is sought for inspection and copying is initially denied but subsequently granted, the propriety of the initial denial becomes a moot issue. OAG 91-140, p. 2. Any issue relative to disclosure of the specified citations became moot when the CCPD complied with Mr. Robey's request for copies of same. Accordingly, we must decline to issue a decision addressing the merits of any issues concerning those records. That being the case, the remaining question is whether the CCPD fulfilled its obligation as to the requested records that are nonexistent.
On appeal, the CCPD explains that it purchased the video camera at issue on February 18, 2003, and, therefore, does not have any records that are responsive to Mr. Robey's request with the exception of the purchase invoice, a copy of which is attached to its response. As consistently recognized by the Attorney General, a public agency cannot afford a requester access to records that do not exist or which are not in its possession or custody. 03-ORD-220, p. 2; OAG 91-101; OAG 86-38; 03-ORD-205, 02-ORD-163; 02-ORD-144; 00-ORD-83; 99-ORD-108; 96-ORD-164; 94-ORD-140; 93-ORD-51. Because the inability of CCPD to produce these records "due to their apparent nonexistence is tantamount to a partial denial," of Mr. Robey's request, however, it was incumbent on CCPD to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 00-ORD-83; 97-ORD-16; 96-ORD-164. An agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist or are not in its possession as the CCPD did here, albeit belatedly. 03-ORD-205, p. 3, citing 99-ORD-98. When an agency denies the existence of requested documents, it is not our function to investigate in order to locate the documents absent a reason to question the truthfulness of the agency's assertion. 03-ORD-220, p. 2. See also 02-ORD-144 and 94-ORD-140. "'This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents.'" 02-ORD-145, p. 4, citing OAG 86-35, p. 5.
Although there may be occasions when the Attorney General requests that an agency substantiate its denial based on the nonexistence of requested records by documenting any efforts made to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, 2 additional inquiry is not warranted on the current facts. 04-ORD-046; 02-ORD-118; 01-ORD-36. Because the CCPD "cannot produce that which it does not have" and has now satisfied its duty to affirmatively indicate as much to Mr. Robey, we find no violation of the Open Records Act in this regard.
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.
Distributed to:
Steve P. RobeyThe Trader Building508 East Main StreetP.O. Box 302Providence, KY 42450-0302
David Elliott, ChiefCalvert City Police DepartmentP.O. Box 36Calvert City, KY 42029
Gregory K. NorthcuttCalvert City AttorneyP.O. Box 996Calvert City, KY 42029
Footnotes
Footnotes
1 Copies of the citations are also attached to the response received by this office.
2 In relevant part, KRS 61.8715 provides:
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.