Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Campbell County Police Department violated the Kentucky Open Records Act in its disposition of Kevin Shegog's request of November 25, 2002, for "'the 911 audiotape telephone call' relating to the robbery of the BP Gas Station on May 28, 2001, located at 2625 Alexandria Pike, Highland Heights, KY around 12:26 a.m." By letter dated December 5, 2002, David Sandfoss, Chief of Police, notified Mr. Shegog that the CCPD was unable to satisfy his request because "media used to record telephone and radio traffic" is only kept for three or four months absent an "order to preserve" and "all media," including "the recording device," was "turned over to the new consolidated dispatching center" in July 2002. KRS 197.025(3) provides:
KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in circuit court. (Emphasis added).
As noted, the CCPD denied Mr. Shegog's request on December 5, 2002. However, Mr. Shegog did not initiate this appeal challenging the denial of his request until July 12, 2004. By its express language, KRS 197.025(3) applies to "any denial" of a request submitted by an inmate under the Open Records Act. To determine legislative intent, we must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.2d 831, 835 (2000). Because Mr. Shegog is "a person confined in a penal facility," and he failed to challenge the CCPD's denial within twenty days as mandated by KRS 197.025(3), his appeal is untimely. Accordingly, this office is precluded from rendering a decision on the merits. 1 02-ORD-54, 02-ORD-110, and 03-ORD-007, copies of which are attached hereto and incorporated by reference, are controlling.
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.
Footnotes
Footnotes
1 As consistently recognized by this office, however, "a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody." 93-ORD-51, p. 4; 03-ORD-240; 02-ORD-156. Because the inability of an agency to produce requested records "due to their apparent nonexistence is tantamount to a partial denial" of a request, it is incumbent on the agency to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 00-ORD-83; 97-ORD-16; OAG 91-101; OAG 86-38. In short, an agency discharges its duty by affirmatively so indicating. 04-ORD-080, p. 12, citing 03-ORD-205, p. 3.