Request By:
James Braxton, # 172651
Marion Adjustment Center
95 Raywick Road
St. Mary, KY 40063Randy S. Bratton
Chief of Police
Paducah Police Department
1400 Broadway Street
Paducah, KY 42001Stacey Blankenship
Denton & Keuler, LLP
Suite 301, 555 Jefferson Street
P.O. Box 929
Paducah, KY 42002-0929
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 actions of the Paducah Police Department relative to the open records request of James Braxton for all arrest records relating to his arrest "on December 23, 2003 at Walmart located on Irvin Cob[b] Drive by arresting officer from PPD; Officer Shepard," violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of procedural violations, the substantive actions of the Police Department did not violate the Act.
By letter dated October 21, 2004, Mr. Braxton requested records relating to his December 23, 2003 arrest by the Police Department. A summary of the records requested in five numerical paragraphs included requests for investigative reports, citations, probable cause affidavits, warrants, arrest records required by KRS 17.110, chain of custody reports of all seized property, inventory lists on seized property, property room log sheet, pictures taken, lab submissions and results conducted on evidence, statements, recordings, audio or video tapes, dispatch calls, cad runs, or radio transmissions.
In his letter of appeal dated November 28, 2004, Mr. Braxton indicated that on October 26, 2004 he received one document from the Police Department's custodian of records and nearly a month later received another envelope with two citations in it. He asserted that he had yet to receive a complete response to his request.
After receipt of the notification of the appeal and a copy of the letter of appeal, Stacey A. Blankenship, attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Blankenship explained:
This letter is in response to your Notification to Agency of Open Records Appeal. As you know, on October 20, 2004, the Attorney General's Office issued an opinion with respect to Mr. Braxton's previous appeal, informing the Police Department that the only thing deficient in the previous response to Open Records Request was the fact that the Police Department failed to give Mr. Braxton the location of the McCracken County 911 Center, which would have the information he requested.
In response to that, the Paducah Police Department issued a note to Mr. Braxton on October 26, 2004, informing him that the McCracken County 911 Center is located at 510 Clark Street, Paducah, Kentucky 42003. (Copy attached hereto as Exhibit "A").
Apparently, Mr. Braxton issued an additional Open Records Request to the Paducah Police Department. Unfortunately, Sgt. Greg Martin did not review the Open Records Request, believing it to be identical to the one previously provided to the Paducah Police Department. As such, an immediate response was not made. However, approximately two weeks later, Sgt. Martin reviewed the letter in more detail and realized that Mr. Braxton had actually redrafted his Open Records Request to request more specific documents. Nevertheless, rather than responding to the Open Records Request, Sgt. Martin made copies of the two citations that were indicated on his Open Records Request and mailed them to Mr. Braxton.
Upon receipt of the appeal to the Attorney General's Office, the undersigned counsel for the first time, reviewed Mr. Braxton's newest Open Records Request. As such the Paducah Police Department has been advised that sending copies of two citations was not a full response to the Open Records Request. A supplement to the response was sent to Mr. Braxton on December 10, 2004. (Copy attached hereto as Exhibit "B").
As such, although the Paducah Police Department did not respond to Mr. Braxton's Open Records Request within the three-day period as set forth in KRS 61 et seq ., the information requested has since been provided to Mr. Braxton, to the extent that the information requested is in the possession of the Paducah Police Department.
In the December 10, 2004, supplemental response, Sgt. Martin advised Mr. Braxton:
In reference to your request for information dated October 21, 2004:
Paragraph 1 -- you have received the 2 citations that reference your arrest. I am now including the officer's report for Possession of a handgun by a convicted felon.
Paragraph 2 -- we do not have any fingerprint or photographs from your arrest.
Paragraph 3 -- I am sending you the property sheet from your arrest.
Paragraph 4 -- No statements or recordings from your case are at the police department.
Paragraph 5 -- No dispatch or CAD runs from your case are housed at the police department.
We are asked to determine whether the actions of the Police Department to Mr. Braxton's open records request violated the Open Records Act. We conclude that, with the exception of procedural deficiencies, the substantive actions of the Police Department did not violate the Act.
The Police Department admitted in its supplemental response provided to this office that the agency had failed to respond to Mr. Braxton's request within three business days and had also failed to fully respond to the request in writing as required by KRS 61.880(1). This was a procedural violation of the Open Records Act. However, these violations are mitigated by the corrective actions taken by the agency in which the employees of the Police Department were advised as to open records response requirements to insure future violations would not occur.
Addressing the substantive issues, the Police Department's December 10, 2004 supplemental response to Mr. Braxton in which the agency provided him with copies of records responsive to his request which the Police Department had and affirmatively advised him as those records that did not exist at the agency was proper and did not constitute a violation of the Open Records Act.
40 KAR 1:030, Section 6, provides: "If the 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." Accordingly, since Mr. Braxton has been provided copies of records responsive to his request in the Police Department's possession, the appeal is moot as to them and no decision will be rendered.
Moreover, the Police Department affirmatively advised Mr. Braxton as those records requested that it did not have or did not exist. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, there was no violation in this regard.
Finally, KRS 61.872 (4) provides:
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 shall furnish the name and location of the official custodian of the agency's public records.
The Police Department's response that notified Mr. Braxton that the McCracken County 911 Center is located at 510 Clark Street, Paducah, Kentucky 42003 was in compliance with the requirements of KRS 61.872(4) and the Open Records Act.
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.