Request By:
Helen Henson
1939 Augustine Avenue
Covington, KY 40601Captain Patrick Swift
Covington Police Department
1 Police Memorial Drive
Covington, KY 41014John J. Fossett
City Solicitor
638 Madison Avenue
Covington, KY 41011
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 Covington Police Department violated the Kentucky Open Records Act in partially denying the request of Helen Henson for copies of "'All' the offense/incident reports, including the 'Hit-Skip reports," in her name and that of her son, Chris Henson, "from the address of '1939 Augustine Avenue'" during the period from June 2004 - December 2004, and two specified offense reports. Although the Department violated KRS 61.880(1) in failing to provide a brief explanation of how KRS 61.878(1)(a) applies to those portions redacted from the responsive records disclosed to Ms. Henson, the Department's interpretation of KRS 189.635(5), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), is supported by governing precedent. However, the Department ultimately discharged its statutory duty by affirmatively indicating to Ms. Henson that no such records exist.
In a timely response on behalf of the Department, Captain Patrick Swift advised Ms. Henson that nine pages of enclosed documents were responsive to her request. Citing KRS 189.635(5), Captain Swift declined to provide Ms. Henson with copies of the requested accident reports as those reports are "in the name of Chris Henson" meaning that Ms. Henson is not an "involved party," and the reports are therefore "exempt from disclosure. " From those records responsive to her request which the Department provided to Ms. Henson, "information redacted is pursuant to KRS 61.878(1)(l)." In closing, Captain Swift advised Ms. Henson that the Department charges $ .10 per page for copies pursuant to KRS 61.874(3), and agreed to forward copies to her upon receipt of a check for $ 1.50 (9 pages @ .10 cents per page).
By letter dated January 30, 2005, Ms. Henson initiated this appeal from the Department's partial denial of her request. According to Ms. Henson, she is an involved party because the vehicle was in her name, and her son, Chris Henson, spoke to the patrolman on her behalf and filed the accident report. "A simple check of the ownership history" on the Department's computer "through the [Department of Motor Vehicles]" would have verified her ownership of the vehicle. In addition, Ms. Henson does not feel that Captain Swift's explanation of KRS 189.635(5) is adequate. In Ms. Henson's view, Captain Swift relied upon "KRS 61.878(1)(1) (sic)" in denying her access "to [her] own accident reports." Likewise, Captain Swift did not provide a "detailed explanation" of how KRS 61.878(1)(a) applies to the information withheld, or how KRS 61.874(3) justifies a copying charge of $ .10 per page. To summarize, the Department's response was procedurally deficient but substantively correct.
Upon receiving notification of Ms. Henson's appeal from this office, John Jay Fossett, City Solicitor, responded on behalf of the Department. As observed by Mr. Fossett:
It appears from the first paragraph of Ms. Henson's appeal that she believes she is listed as an involved person on certain traffic collision reports involving her son, Chris Henson, which is not the case. If such documents had existed, they would have been provided to Ms. Henson, along with the nine pages of documents produced by the Police Department.
Quoting Captain Swift's response, Mr. Fossett explains:
This simply clarifies that if such documents existed, which is not the case, they would not be disclosable to Ms. Henson. Furthermore, despite Ms. Henson's suggestions otherwise, the City of Covington Police Department is not required, for the purpose of responding to requests under the Open Records Act, to check vehicle ownership history through state D.M.V. records.
In Mr. Fossett's view, Captain Swift adequately explains the meaning of KRS 189.635(5). As correctly observed by Mr. Fossett, the statute cited by Mr. Henson "does not exist." Mr. Fossett "cannot understand Ms. Henson's complaint since she was not denied access to her own accident reports." With respect to Ms. Henson's contention that Captain Swift did not provide a detailed explanation of KRS 61.878(1)(a), Mr. Fossett merely quotes the language of this provision without further explanation as "this particular matter has been exhaustingly explained in the past" to both Ms. Henson and her son, Christopher Henson. In closing, Mr. Fossett notes that both Ms. Henson and her son "are well aware" of the fee for copies, and correctly argues that previous decisions issued by this office "have held that a charge of .10 cents per page is reasonable."
In reply, Ms. Henson explains that Chris was never involved in any traffic collision. Rather, her vehicle was parked in front of her home at the time of the incident where it "had been struck on several different occasions by a hit/skip vehicle." At her request, Chris contacted the police dispatch center and provided the police officer with all of the pertinent information for the written report. According to Ms. Henson, the officer advised Chris that both he and his mother would be entitled to receive a copy of the report, as the "complainant" and "victim," respectively. Even if both names do not appear on the report as the officer indicated, Ms. Henson believes this should have been "thoroughly explained" to her as required by KR 61.880(1). Acknowledging that it is not the duty of the Attorney General to investigate when an agency denies the existence of requested records, Ms. Henson explains that she would not have raised this issue on appeal had Captain Swift explained why no responsive records exist in his letter.
Next, Ms. Henson disagrees with Mr. Fossett's assertion that the Department is not required to check vehicle ownership history for the purpose of responding to requests submitted pursuant to the Open Records Act as public agencies must make a good faith effort to locate requested records. 1 Mistakenly referencing KRS 61.878(1)(1), Ms. Henson then quotes the language of KRS 61.878(1)(l), which provides that "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are among those records excluded from application of the Act, correctly observing that KRS 189.635(5) is incorporated into the Act by operation of this provision. Disputing the Department's contention that it did not deny her access to her own accident reports, Ms. Henson again acknowledges the "very limited quasi-adjudicative role" played by the Attorney General in this context and the inability of this office to resolve factual disputes. Lastly, Ms. Henson clarifies that she is in "no way" complaining with regard to the copying fee. To the contrary, Ms. Henson agrees that it is "indeed reasonable," correctly citing Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) as authority. 2 In short, Ms. Henson's remaining complaint is that Captain Swift's response was procedurally deficient to the extent that he failed to provide a "brief explanation" of how the cited statutory exceptions apply to the records withheld as required by KRS 61.880(1). Although Ms. Henson is correct in this assertion, the Department's response is substantively correct.
As a public agency, the Department is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests 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 record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-163; 04-ORD-106. Although the Department responded to Ms. Henson's request in a timely manner, and cited the applicable statutory exceptions, the Department neglected to explain in detail how KRS 189.635(5) applies to the reports withheld, although the Department remedies this error on appeal as evidenced by Ms. Henson's reply. 3 Noticeably absent from the Department's response is any explanation of how KRS 61.878(1)(a) applies to those unidentified portions redacted from the responsive records provided to Ms. Henson. With respect to such an omission, the Attorney General has long recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213.
More generally, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof.
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. In summary, neither the initial response nor the supplemental response of the Department contains the specificity envisioned by KRS 61.880(1) relative to KRS 61.878(1)(a). From a procedural standpoint, the Department violated the Open Records Act in this regard. In responding to future requests, the Department should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
Turning to the substantive argument advanced by the Department in support of its denial, 03-ORD-188, a copy of which is attached hereto and incorporated by reference, is controlling. Because Ms. Henson is not a party to the accident, the parent or guardian of a minor who is a party to the accident, the insurer of any party who is the subject of any of the reports, or the attorney for one of the parties, KRS 189.635(5), nor is she a representative of a news-gathering organization seeking disclosure "solely for the purpose of publishing or broadcasting the news," KRS 189.635(6), the Department properly relied upon KRS 189.635(5) in denying Ms. Henson's request as to the reports at issue.
On appeal, the Department clarifies that the requested reports would not be subject to inspection by Ms. Henson if any such records existed since she does not qualify as a party to the accident in question. 4 As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 99-ORD-198; 98-ORD-200; OAG 91-112; OAG 87-54; OAG 83-111. In other words, a public agency cannot afford a requester access to records that it does not have or which do not exist. 03-ORD-205, p. 3, citing 99-ORD-98. Rather, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. Such is apparently not the case here. However, the Department's inability to produce the requested records due to their apparent nonexistence "is tantamount to a denial" of Ms. Henson's request, and it was incumbent on the Department to notify Ms. Henson that no records fitting the description provided exist "in clear and direct terms." 02-ORD-144, p. 3. While an agency obviously cannot furnish that which it does not have or which does not exist, "a written response that does not clearly so state is deficient. " Id. Accordingly, the Attorney General has held that a public agency's response violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3, with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the Department ultimately did here. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98. It is not the function of this office to conduct an investigation in order to locate records whose existence or custody is in dispute. 01-ORD-36, p. 2. Although there are occasions when the Attorney General may request that an agency substantiate a denial based on the nonexistence of the 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, additional inquiry is not warranted on the facts presented.
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 In framing a request, arequester must describe the records being sought with reasonable particularity. " If he does not, the agency is not obligated to conduct a search for the records." 97-ORD-46, p. 3, citing 95-ORD-108, pp. 2-3 (emphasis added). Assuming the requested records are described with reasonable particularity, the standard articulated in 95-ORD-96 governs the agency's search:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on the agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra, at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id., pp. 7-8. Although the Department was not required to conduct a search for information as suggested, public agencies such as the Department must adhere to this standard when conducting a search for existing records.
2 In Friend v. Rees , the Kentucky Court of Appeals held that ten cents per page is a reasonable fee for reproducing standard hard copy records, and the Attorney General has adopted this position in a long line of decisions. See 04-ORD-106; 01-ORD-136; 99-ORD-40. Such a policy is entirely consistent with both KRS 61.874(1) and 61.874(3) as acknowledged by Ms. Henson. Further elaboration as to this issue is therefore unwarranted.
3 In the future, the Department should bear in mind that a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id.
4 Although this inference could logically be drawn from the Department's initial response, the Department clearly expresses this in its supplemental response.