Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Mayfield violated the Open Records Act in the disposition of Daphne Pyle's June 28, 2005, request for records relating to complaints against Officer Tye Jackson and other Mayfield police officers arising from an incident that occurred at the American Buffet on May 1, 2005. For the reasons that follow, we find that the record on appeal does not support the claimed violation of KRS 61.880(1). However, because the City elected not to respond to this office's KRS 61.880(2)(c) request for additional information to substantiate its position, we cannot affirm its denial of Ms. Pyle's request on the basis of the nonexistence of any responsive records other than the complaints filed against Officer Jackson and other officers and the letter from Mayfield's city attorney regarding his investigation which were disclosed to her.
By letter dated July 5, 2005, Mayor Arthur Byrn responded to Ms. Pyle's request advising her that based upon its "investigation into the complaints, the City has decided to take no action against these officers." Mayor Byrn further advised that "[t]he only documents regarding this matter" consisted of the complaints against the officers and City Attorney S. Boyd Neely's letter "wherein he finds no wrongdoing on the part of the officers," copies of which were released to Ms. Pyle. Mr. Neely's letter states as follows:
I have checked with a law enforcement agency and a county attorney, along with an attorney who specializes in police complaints. Even assuming all matters set forth in the complaints are true, I do not believe there are any grounds for disciplinary charges against the police officers. Although there are differing opinions regarding the search of the workers/patrons of American Buffet as to the suppression of any items that may have been found in the search of these individuals, all sources agree that a pat down search of all individuals on the scene where a search warrant is being executed is appropriate. Even if the officers went too far in their search of these individuals, it would be a matter for suppression of evidence rather than any grounds for disciplinary charges. All sources agree regarding that.
In closing, Mr. Neely opined that there was "no basis to prefer charges for misconduct on the complaints of the workers/patrons of American Buffet . . . ."
In supplemental correspondence directed to this office following commencement of Ms. Pyle's appeal, Mr. Neely responded to what he identified as "the only issue which is the subject of appeal, [to wit] the timeliness of the response." He observed:
The City of Mayfield acknowledges that it received a Request for Open Records on June 28, 2005, from Daphne Pyle and Lanetta Kronner requesting any records, documentation and/or final action taken against certain City Police Officers as a result of an incident which occurred May 1, 2005. The Request, by its very terms, stated "please respond by July 2, 2005." The requestors, Daphne Pyle and Lanetta Kronner, were assisted in their request by Ralph Priddy, who has made numerous requests to the City of Mayfield for open records. In all of the prior requests by Ralph Priddy, a protocol has been established where the records have been copied and made available to him upon payment of the copy costs on the due date. He always came in on the due date to retrieve the records.
In the instant case, Daphne Pyle and Lanetta Kronner submitted their Request for Open Records on June 28, 2005. Although the City acknowledges that statutorily, a response is due within three days (July 1, 2005), Pyle and Kronner specifically granted the City one additional day (July 2, 2005) to comply with their request. July 2nd was a Saturday, July 3rd was a Sunday; and July 4th (Monday) was a legal holiday. Therefore, the City's response to Pyle and Kronner's Request was due on July 5, 2005.
The records requested by Pyle and Kronner were ready and available for them on July 5, 2005. The letter from Mayor Byrn to Pyle and Kronner was dated July 5, 2005. Enclosed in that letter were all the records requested by Pyle and Kronner. Because Pyle and Kronner were assisted by Ralph Priddy, who had made numerous prior requests for open records, the City fully anticipated that Pyle and Kronner or Priddy would come to the Clerk's Office to pick up the records on July 5, 2005. However, they did not. When neither Pyle or Kronner nor Priddy showed up on July 5, 2005, to pick up the records and pay the copy costs, Pyle and Kronner were called on July 6, 2005, and informed that the records were ready.
Based on these facts, we find that the City of Mayfield did not violate KRS 61.880(1), requiring a written agency response to an open records request within three business days, in the disposition of Ms. Pyle's request. Any incidental delay in issuing a response was occasioned by a breakdown in communications and not an intentional failure to act.
Nevertheless, our review of Mayor Byrn's original response to Ms. Pyle's request, coupled with the city attorney's letter referenced therein, prompted this office to request additional documentation from the City of Mayfield for substantiation pursuant to KRS 61.880(2)(c). 1 By letter dated July 21, 2005, we asked that the City respond to the following questions to substantiate its position:
1. Does the City of Mayfield, or the Mayfield Police Department, maintain a policy manual, or any other document, that addresses procedures to be implemented when a complaint is filed against a police officer? If so, please furnish this office with a copy of the pertinent portion of the manual or document.
2. Who is the ultimate decision maker relative to final action in such matters?
3. In his June 21, 2005, letter to you, S. Boyd Neely, Jr., indicates that he "investigated the complaints of the various workers/customers of American Buffet arising from the May 1 incident." Please advise whether all or any part of Mr. Neely's investigation was reduced to writing. If so, please provide this office with a copy of Mr. Neely's written investigation.
4. In the same letter, Mr. Neely indicates that he "checked with a law enforcement agency and a county attorney, along with an attorney who specializes in police complaints." Please advise whether any of the referenced discussions were reduced to writing. If so, please provide this office with a copy of any correspondence, or other documentation, related to Mr. Neely's consultation with these individuals.
5. Please advise whether Officer Tye or any other Mayfield police officer was notified in writing that no charges would be preferred against him (them) for the alleged misconduct. If so, please provide this office with a copy of the written notice to Officer Tye or any other Mayfield police officer.
In view of the time constraints imposed on this office in adjudicating open records disputes, we asked the City to respond to our inquiry on or before July 27, 2005. To date, we have received no response to our inquiry from the City.
It is for this reason that we cannot unconditionally affirm the City of Mayfield's disposition of Ms. Pyle's request. In addition to KRS 61.880(2)(c) referenced above, 40 KAR 1:030(3) recognizes that the Attorney General may "request additional documentation from the agency against which a complaint is made." Thus, the General Assembly has twice vested the Attorney General with the authority to request documentation from the agency to substantiate its position, including copies of the records in dispute. Without this authority, the Attorney General's ability to render a decision is severely impaired. Accord, 96-ORD-206; 04-ORD-031.
Clearly, the City of Mayfield cannot produce records that do not exist. See, e.g., 04-ORD-036; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112. Our line of inquiry was aimed at ascertaining whether additional documentation might exist that the City did not consider responsive to Ms. Pyle's request. In addition, our questions were intended to insure that proper records creation and management practices were observed, relative to the City's investigation and resolution of the complaints, in recognition of the "essential relationship" that is deemed to exist between KRS 61.870 through 61.884, the Open Records Act, and KRS 171.410 through 171.740, dealing with the management of public records. Absent a response from the City of Mayfield, these questions remain unanswered.
Accordingly, we find that if Mr. Neely's investigation, or any of the discussions he conducted with the individuals referenced in his June 21 letter to Mayor Byrn, were reduced to writing, and/or if Officer Tye, or any other Mayfield police officer, was notified in writing that no charges would be preferred against him, those records must be disclosed to Ms. Pyle unless the City can articulate a specific statutory basis for denying her access. If no such records exist, the City of Mayfield is obligated to affirmatively so state in a written response to this office and Ms. Pyle. 02-ORD-144; 04-ORD-205. Until it has done so, the City's duties under the Open Records Act will not have been fully satisfied.
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.
Daphne Pyle913 South 10th Street Mayfield, KY 42066
Mayor Arthur Byrn211 East BroadwayMayfield, KY 42066
Chief Michael GreiszMayfield Police Department211 E. BroadwayMayfield, KY 42066
Sam Boyd Neely, Jr.City Attorney238 N. 7th StreetMayfield, KY 42066
Footnotes
Footnotes
1 KRS 61.880(2)(c) states that "[t]he burden of proof in sustaining the action shall rest with the agency and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed." (Emphasis added.)