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 actions of the Bullitt County Sheriff's Department relative to the request of David M. Berry to inspect the record "on the police runs for any calls made to the address[es]" provided, and a criminal background check" on named individuals, violated the Kentucky Open Records Act. Because the Department does not possess any records which are responsive to Mr. Berry's request, notified Mr. Berry of that fact, and provided him with the name and location of the custodial agencies in compliance with KRS 61.872(4), the Department has fully discharged its statutory duty.
By letter dated August 1, 2004, Mr. Berry directed his request to the following address:
Sheff., Dept.
Bullitt Co.
Paul Parsley
Courthouse
300 S. Buckman St.
P.O. Box 205
Sheperdsville, KY 40165
Having received no response, Mr. Berry initiated this appeal on August 17, 2004.
Upon receiving notification of Mr. Berry's appeal, however, Mr. Walter A. Sholar, Bullitt County Attorney, responded on behalf of the Department. As explained by Mr. Sholar:
The [Department] by and through James M. McAuliffe, Chief Deputy, has advised me that they have no record of having received an open records request from Mr. David M. Berry. Their first notice of this open records request was the notification of appeal received from your office on August 23, 2004.
With respect to disagreements of this nature between a requester and a public agency, this office has consistently observed:
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; 04-ORD-036; 03-ORD-204. As in these decisions, the record on appeal does not contain sufficient information concerning the actual delivery and receipt of Mr. Berry's request for this office to resolve the related factual discrepancy. 1
Turning to the substantive issue presented, Mr. Sholar advises this office as follows:
The Bullitt County Sheriff's Department has no record of any runs to 475 Landis Lane, Lot No. 141, Mt. Washington, Kentucky 40047. The address is located within the City of Mt. Washington and the police jurisdiction is the Mt. Washington Police Department. The Bullitt County Sheriff's Department has no record of runs made to 148 Coral Bay Court, Apt. # 6, Sheperdsville, Kentucky 40165. The address is within the municipal boundaries of [the] City of Sheperdsville and is under the police jurisdiction of the Sheperdsville Police Department. The Bullitt County Sheriff's Department does not maintain criminal records on individuals other than in an active criminal investigation which would be exempt from inspection pursuant to KRS 61.878(1)(h). Moreover, it would be illegal for the Bullitt County Sheriff's Department to conduct a criminal background check for private individuals and therefore Mr. Berry's request cannot be [honored].
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist. 04-ORD-036, p. 5, citing 03-ORD-205, p. 3; 02-ORD-118; 99-ORD-98; 98-ORD-200; OAG 91-112; OAG 83-111; OAG 87-54. An agency discharges its duty under the Open Records Act by affirmatively so indicating. Id. 2 "While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 03-ORD-220, p. 2 (citation omitted). Although there are occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented. 3 To the contrary, the Department's explanation as to why it does not possess any responsive records is entirely credible. Because the Department "cannot produce that which it does not have" and affirmatively indicated as much to Mr. Berry, its response did not violate the Open Records Act in this regard. 99-ORD-108, p. 3. However, the Department's obligation did not end there.
Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and furnish the name and location of the official custodian of the agency's public records. " In this case, the Department affirmatively indicated that it does not possess any records which are responsive to his request, explained why any responsive records would be in the custody of the Mt. Washington Police Department and the Sheperdsville Police Department, respectively, and provided him with the address for both agencies as mandated by this provision. No more is required. Accordingly, it is the decision of this office that the Department fully complied with the Open Records Act in responding to Mr. Berry's request. In light of this determination, analysis of the Department's remaining arguments is unnecessary.
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.
David M. Berry, # 167072Northpoint Training Center, Dorm # 3P.O. Box 479Burgin, KY 40310
Sheriff Paul Parsley300 S. Buckman StreetP.O. Box 6570Sheperdsville, KY 40165-0205
Walter Sholar129 W. 4th AvenueP.O. Box 6539Sheperdsville, KY 40165-6539
Footnotes
Footnotes
1 However, the fact that Mr. Berry mailed his request to P.O. Box 205 rather than P.O. Box 6570, the address to which this office mailed the "Notification to Agency of Receipt of Open Records Appeal," lends credibility to the Department's position.
2 Because the inability of the Department to produce these records "due to their apparent nonexistence is tantamount to a partial denial" of Mr. Berry's request, it was incumbent on the Department to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 03-ORD-220; 00-ORD-83; 97-ORD-16; 96-ORD-164; OAG 91-101; OAG 86-38.
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.