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 (LFUCG) violated the Open Records Act in its response to Gayle Slaughter's request, described here generally, for the following records: for police radio transmissions, dispatch log showing transcript of radio transmissions, documents explaining police codes and signals, documents relating to radio frequencies assigned by FCC to LFUCG Division of Police, list of frequencies used, and similar document data for digital text-messaging and frequencies used and in effect on January 28, 2005, work schedules and assignments for the time between the hours of 0130 hour and 0800 hour on January 28, 2005 for radio dispatch personnel and communications center personnel and records showing the identity of each active duty sworn police officer who responded to Officer Cobb's collision, documents relating to LCUCG Division of Police policy for investigation of police officer traffic collisions, a copy of KSP 74 "Kentucky Uniform Police Traffic Collision Report" relating to the traffic collision between Officer Cobb and citizen Tracy Cobb between the hours of 0130 hour and 0800 hour on January 28, 2005, all Internal Affairs complaints filed against Officer Cobb and disposition documents from January 1995 through current date of inspection. For the reasons that follow, we find no violation of the Act.
In her letter of appeal, Ms. Slaughter asserted that the portions of the LFUCG's response improperly denied portions of her request or ignored portions of other requests and that the agency's failure to provide her with full and complete disclosure of material in the public domain violates her constitutional rights under both the United States Constitution and the Kentucky Constitution.
Both the LFUCG's initial response to Ms. Slaughter's request and its supplemental response provided to this office addressing the issues raised in the letter of appeal, state that no records were denied for Ms. Slaughter's inspection, except for her request for the exact same records she had been provided in previous open records requests.
We address first the issue in which Ms. Slaughter argues that LFUCG failed to provide her with all the requested records and LFUCG's assertion that no records were denied for Ms. Slaughter's inspection except for records which had previously been provided to her in response to previous requests. With respect to factual disputes of this type, this office has consistently recognized:
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; See also 03-ORD-204. Since this appeal epitomizes the type of factual dispute that we are unable to resolve, we make no finding on this issue. We do note that LFUCG's response to the issues raised in this appeal offered an extensive discussion and explanation of the records requested and those provided to Ms. Slaughter. 1 Moreover the LFUCG, in its responses, advised Ms. Slaughter if a requested record did not exist, and explained why. The LFUCG discharged its duty under the Open Records Act in this regard by affirmatively so advising and explaining why the requested record did not exist. 99-ORD-150. Under the circumstances, as described above, particularly with the large number and broad nature of the requests, we urge the parties to work toward an amiable resolution to resolve any differences or misunderstandings related to any records at issue.
Next we address that portion of the response in which LFUCG indicated that it had denied Ms. Slaughter's request for the exact same records she had been provided in previous open records requests. With respect to duplicative requests for documents, the Attorney General has stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
To produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended. Citing OAG 77-151, p. 3.
Here, as in our earlier decisions, unless Ms. Slaughter can explain the necessity of reproducing the same records which either already have been provided or have been inspected by her, such as loss or destruction of the records, we can see no reason why LFUCG must satisfy the same request a second time. 95-ORD-47.
We next consider Ms. Slaughter's argument that LFUCG's failure to provide her with full and complete disclosure of material in the public domain violates her constitutional rights under both the United States Constitution and the Kentucky Constitution. We cannot address, in the context of an open records appeal, a complaint that a statute is unconstitutional. This office "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; 05-ORD-036.
In her letter of appeal, Ms. Slaughter stated that her request for material in electronic format was totally ignored. In its supplemental response, the LFUCG, explained that she had been provided the documents "in paper form, in printout form and the tapes on audiotape." The LFUCG further explained it would need further clarification from Ms. Slaughter as to what records she sought in electronic format. We conclude, in the absence of a request for specific records in electronic format, that LFUCG's response was in substantial compliance with the Open Records Act. As noted above, the parties should cooperate to resolve any differences or misunderstandings related to any records at issue.
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.
Footnotes
Footnotes
1 Mr. Sanner also explained that some of the records that Ms. Slaughter claimed were missing in LFUCG's response were documents that were referenced in footnotes or referred to in a requested record. We agree with Mr. Sanner's response that the Open Records Act does not contemplate the providing of documents that are footnoted and referenced in the original requested record and which were not specifically requested.