Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government, Division of Police (Division) violated the Open Records Act in the disposition of the request of Daron Williams, Lexington Snitch Magazine, for a copy of "[a]ny photographs that may exist regarding the Mary Marrs Swinebroad Cawein case. Cawein was a local socialite who was murdered in 1965 at the age of 39." For the reasons that follow, we find the Division's response affirmatively advising him that the requested records did not exist was proper and did not constitute a violation of the Act.
By letter dated November 3, 2004, Lieutenant Alan Martin, Bureau of Investigations, Investigative Support Section of the Division, responded to Mr. Simpson's request, received on April 19, 2004, advising:
This request has been researched and there are no photographs available regarding this case. If I may be of further assistance please do not hesitate to let me know.
As a result of the Division's response to this request, Tim Woodburn, Lexington Snitch Magazine, initiated the instant appeal. In addition to the appeal of the Division's response, Mr. Woodburn asked that this office "officially close an 'open' homicide investigation of Mary Marrs Swinebroad Cawein, a Lexington woman who was murdered in her home in 1964. A coroner ruled the cause of death was the result of an injection of carbolic acid into her body."
After receipt of notification of the appeal and a copy of the letter of appeal, Michael R. Sanner, Corporate Counsel, Lexington Fayette Urban County Government, provided this office with a response to the issues raised in the appeal. In his response, Mr. Sanner reiterated that after a reasonable search no photographs concerning the Mary Marrs Swinebroad Cawein case were found. Addressing the request for the Attorney General to officially close the Cawein case, Mr. Sanner stated:
The second item of Mr. Woodburn's appeal requests the Attorney General's Office to close an open homicide investigation of the Lexington-Fayette Urban County Government Division of Police. This request is well outside the jurisdiction of an open records appeal and should be dismissed. I find no statute, regulation or case law authority that enables the Attorney General to close a local division of police investigation in response to an open records appeal.
For the following reasons, we find that the Division's responses relative to Mr. William's request and Mr. Woodburn's appeal did not violate the Open Records Act.
In response to a request from this office for the LFUCG to detail the agency's efforts and methods used in searching for the requested photographs, Mr. Sanner, by letter dated December 7, 2004, advised:
Photographs that are taken of these types of crimes are put in the evidence collection box. When Lieutenant Alan Martin received the request, it was his understanding that the victim was murdered by poison administered by hypodermic syringe. Based on his experience, it was Lieutenant Martin's hypothesis that since the murder was committed by hypodermic syringe, there were probably no photographs taken of the victim in the 1960's since there was visibly nothing unusual to photograph. If the photographs did exist, they would be in the evidence collection box. Lieutenant Martin searched the evidence collection box for the 1960's and early 1970's and found no photographs pertaining to the case. Lieutenant Martin also conducted a search of archives (where older items are stored) and did not locate the case file in archives.
If these photographs did indeed exist (which is doubtful) , they would have been in the collection box. Additionally, Lieutenant Martin searched archives and did not locate the file. There are no other known locations for Lieutenant Martin to search for these photographs if they ever existed.
Generally, when the Division of Police receives a request for documents regarding an open case of this age where no police activity has taken place for some time, the Division of Police will release the case file unless some of the records are exempt pursuant to other open records exemptions. In stale cases such as these, the Division of Police generally does not exempt records based on the fact that the investigation is still open. Since it is doubtful photographs pertaining to this case even existed in the first place, and since none could be located by reasonable search in the evidence box or archives, the Division of Police could not release something they did not have.
The standard by which this office assesses the adequacy of an agency's search for public records is found at 95-ORD-96. At page 7 of that decision the Attorney General held that an agency must conduct a search for responsive records "using methods that [could] reasonably be expected to produce the records requested." Based on the foregoing response, we conclude that LFUCG adequately documented the steps it took in conducting its search, and explained why no photographs were found or existed. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Division advised that no photographs concerning the Mary Marrs Swinebroad Cawein case were found. The Division discharged its duty under the Open Records Act by affirmatively so advising that the requested records did not exist. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Next, we address the request that the Attorney General officially close the homicide investigation of the Cawein case. We agree with the Division's position on this issue. We cannot address, in the context of an open records appeal, an issue of this nature. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the Division violated the Open Records Act in its handling of Mr. William's open records request, which, as noted above, we concluded it did not.
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.