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 Lexington Fayette Urban County Government, Division of Police, relative to the request of Edgar A. Scott, Jr. for a copy of the tape recording of the 911 phone call that he made on April 10, 2003, violated the Kentucky Open Records Act. Although this office is unable to conclusively resolve the factual issue regarding delivery and receipt of Mr. Scott's request, the Division of Police discharged its statutory duty upon being notified of this appeal by advising Mr. Scott that the requested record was properly destroyed pursuant to the applicable records retention schedule.
In a letter directed to Sergeant James R. Bloomfield on December 29, 2004, Mr. Scott requested a copy of the "911 phone call" that he made on April 10, 2003, "which was forward[ed] to Ray Larson's Office, by Kathy Phillips, Prosecutor." On January 12, 2005, Major Robert Stack, Planning & Analysis Unit advised Mr. Scott as follows:
Your correspondence to the Lexington Division of Police was delivered to this unit for a response. Upon contacting Kathy Phillips, Prosecutor, Fayette County Commonwealth Attorney's Office, it was determined that the Commonwealth Attorney's Office received the same document and is handling your request.
This office cannot respond to court motions. Therefore, all future motions should be sent to the Commonwealth's Attorney.
A copy of the request to which Major Stack refers is not attached to Mr. Scott's appeal. 1
On appeal, Mr. Scott indicates that his initial request for the specified 911 tape directed to the "Lexington Metro Police Department" was returned to him. A copy of the envelope in which his request was presumably mailed is attached, and is stamped "Returned to Sender Attempted Unknown." However, Mr. Scott has requested this tape "on numerous occa[sions]," and submitted a request for the same tape to both the Commonwealth's Attorney's Office and his trial judge, Fayette Circuit Court Judge Mary C. Noble. 2
Upon receiving notification of Mr. Scott's appeal from this office, Michael R. Sanner, Corporate Counsel, responded on behalf of LFUCG. As observed by Mr. Sanner, it is unclear "exactly what Mr. Scott is appealing as the Division of Police had not received an Open Records request from him." According to Mr. Sanner:
Sgt. James R. Bloomfield retired from the Lexington Division of Police on September 10, 2003. When the letter that was addressed to him was received at the Lexington Division of Police, the letter was returned unopened to Mr. Scott as Sgt. Bloomfield had not worked for the Division of Police for over two years. The Division of Police cannot respond to an Open Records request it did not receive.
In addressing disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate 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. . . . 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. Likewise, the record on appeal does not contain sufficient evidence concerning the actual receipt and delivery of Mr. Scott's request for this office to conclusively resolve the related factual discrepancy. Because the Division responded in a proper and timely fashion upon receiving the copy of Mr. Scott's request which accompanied the notification of appeal issued by this office, and has provided a credible explanation for the delay, further discussion of this procedural issue is unwarranted.
Turning to the substantive issue presented, Mr. Sanner advises us that if Mr. Scott's request had been received, "Mr. Scott would have been informed that the 911 tape he requested was destroyed pursuant to the Division of Police regular retention schedule after 60 days. The 911 tape Mr. Scott requested was destroyed on or about June 10, 2003, almost two years ago." If a copy of the tape was made, the Division forwarded it to the Commonwealth's Attorney's Office at 116 N. Upper Street, Suite 300, Lexington, Kentucky 40507. 3 Having confirmed that the appropriate retention period for tapes of the type requested is 60 days, this office finds no error in the Division's disposition of Mr. Scott's request. See Records Retention Schedule -- Lexington/Fayette Urban County Government -- Public Safety -- Police Department, D-1, Series L4848, a copy of which is attached, which provides that "Radio Run Tapes, " defined as tapes "used to record all dispatch information whether it be by telephone or radio, " are to be erased and reused in 60 days. 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; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the LFUCG Division of Police cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, 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; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. 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.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office 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," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the Division ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. 5 When an agency denies the existence of requested records, it is not "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. Rather, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
Although there may be occasions when the Attorney General requests that an agency substantiate its 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, 6 further inquiry is not warranted on the facts presented. To the contrary, the Division is only required to maintain tapes of the type requested for 60 days according to the applicable records retention schedule, and Mr. Scott admittedly made the 911 phone call at issue on April 10, 2003, almost two years ago. Because the Division cannot produce for inspection or copying a record which no longer exists or is no longer in its possession or custody, and has complied with the statutory mandate to provide a written response to that effect, it is the decision of this office that the actions of the Division relative to Mr. Scott's request did not violate the Open Records Act. 7
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). 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 Attached to the LFUCG's supplemental response as Exhibit A is a copy of a document entitled "Petitioner's Requested Documents as 'Investigative Reports' Supports Detective Carol S. Simms['s] Jury Testimony," which Mr. Scott apparently directed to the LFUCG Division of Police on January 4, 2005, although the certificate of service identifies the mailing date as January 4, 2004. It is presumably this request to which Major Stack refers in his response on behalf of the Division.
2 Although Mr. Scott further observes that he has requested a copy of his pre-sentence investigation report from both the Fayette County Probation and Parole Office and Eastern Kentucky Correctional Complex where Mr. Scott is an inmate, neither of which is a party to this appeal, noticeably absent from Mr. Scott's appeal is any documentation to support this assertion. Also lacking is a request from Mr. Scott to the Division, the actions of which are the sole focus of this appeal, for a copy of his PSI. In relevant part, KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request.
(Emphasis supplied). Accordingly, 40 KAR 1:030, Section 1 provides: "The Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." As evidenced by the foregoing, Mr. Scott has not perfected his appeal relative to the aforementioned requests for his PSI, and this office is therefore precluded from considering his complaint regarding the actions of any agency, including the Division, as to that record at this time. However, Mr. Scott is not entitled to receive a copy of his pre-sentence investigation report despite his assertion to the contrary. See 03-ORD-198, a copy of which is attached hereto and incorporated by reference. At most, Mr. Scott is entitled to be advised of the factual content and conclusions contained therein.
3 While this uncertainty is surprising, the record does not reflect nor has our research revealed that the Division is legally obligated to generate or maintain records documenting the production or distribution of such copies to public agencies like the Commonwealth's Attorney.
4 Likewise, the Records Retention Schedule - Local Government - Public Safety - 911, V-1, Series L5223, governing "Dispatch Recordings, " which may be "transmitted by radio or phone and recorded on rewritable CDs or tapes, " must be destroyed or reused in 30 days "if there is no investigation relating to information on the recording. " If being used in an investigation, the recordings must be maintained "until the resolution of the case." (Emphasis added). Mr. Scott does not contend nor does the record reflect that any investigation is ongoing. To the contrary, the Fayette Circuit Court Order denying Mr. Scott's motion for "Requested Documents," a copy of which is attached to his letter of appeal, indicates that the criminal case "has already been tried to a jury and produced a verdict of guilty." Under either timetable, the LFUCG properly destroyed the 911 tape at issue prior to Mr. Scott's request.
5 On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98.
6 In relevant part, KRS 61.8715 provides: "The General Assembly finds an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . ."
7 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.
By forwarding Mr. Scott's request to the Commonwealth's Attorney, the Division substantially complied with this provision.