Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in denying the request of Terrance Eugene Miles to inspect "any and all of the back/forward 'Radio Transmissions'" made in connection with case number 05-CR-0740. To the extent the LMPD does not possess any records which are responsive to Mr. Miles' request, the LMPD substantially complied with KRS 61.872(4) by notifying Mr. Miles in writing and providing him with the name and address of the custodial agency in response to his initial request. Assuming the fees imposed by the LMPD in response to Mr. Miles' revised request do not exceed the actual cost of reproduction, the LMPD acted in a manner consistent with KRS 61.874(3) and related provisions.
More specifically, Mr. Miles requested access to all of the "'Radio Transmissions' (from 02/27/2005) that transpired from '03:30' until '07:46' and video from dash camera of Officer Frank Hill 2148 of the LMPD and Officer Steve Kelsey 2897 of the LMPD on (03/10/2005) from '2030' until '2300,'" (Sic) as well as "back and forward communication between the Lead Detectives Teddy Laun 7027 and Christopher Ashby 7010 of the Shively Police Department, and all assisting 'Other Officers.'" (Sic) By letter directed to this office on October 24, 2005, Mr. Miles asked this office to "compel" the LMPD and the Chief Medical Examiner's Office to respond. 1
Upon receiving notification of Mr. Miles' appeal from this office, Alicia M. Smiley, Media and Public Relations, responded on behalf of the LMPD. According to Ms. Smiley, the LMPD received an undated request from Mr. Miles on October 17, 2005, to which the LMPD responded on October 18, 2005; a copy of the response is attached to Ms. Smiley's supplemental response. As reiterated by Ms. Smiley, the LMPD advised Mr. Miles that the LMPD was "not the lead agency in this case and no such case number as 05-CR-0740 existed within the Department." Case No. 05-CR-0740 "involves a homicide that occurred under the jurisdiction of the Shively Police Department, and LMPD officer Frank Hill served an assisting role while working off-duty at the homicide location." Because the LMPD does not maintain records for the SPD, Ms. Smiley advised Mr. Miles to contact the SPD at 3930 Park Drive, Shively, Kentucky 40216, (502) 448-6181, "since that agency was responsible for the collection and maintenance of all evidence, including radio transmissions, in this case."
Also attached to Ms. Smiley's supplemental response is a copy of the request from Mr. Miles dated October 31, 2005, for copies of all radio transmissions from "Officer Frank Lee Hill 2148 (2nd Division, 223 Adam)" to other officers and EMS on February 27, 2005, at approximately "0330-0340" and the videotape from Officer Hill's cruiser "on said date and time." In a timely written response (a copy of which is also of record), Ms. Smiley agreed to honor Mr. Miles' request upon receipt of a check or money order, payable to the LMPD, in the amount of $ 8.00; a fee of $ 3.00 per videotape and $ 3.00 per audiotape in addition to $ 2.00 postage "is being assessed to cover the cost of materials." As of the date on which the LMPD responded to this appeal, November 8, 2005, no payment had been received. In sum, Mr. Miles has been provided with contact information for the lead agency which maintains all of the evidence in the referenced case and has also been given the option of forwarding payment to the LMPD for copies of records relating to Officer Hill, as indicated by Ms. Smiley; nothing more is required.
As long recognized by the Attorney General, a public agency cannot afford a requester access to records that it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as the LMPD obviously cannot produce for inspection or copying records 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 consistently observed that an 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." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 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 indicating that no responsive records exist (or are in the custody of the agency) as the LMPD did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. 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. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy its burden of proof, an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist) of the requested records, and the record validates rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
However, the analysis does not end there. Pursuant to KRS 61.872(4): "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. " Here, the LMPD affirmatively indicated that it does not possess or maintain the records requested, 2 explained why any responsive records would be in the custody of the SPD, and provided the requester with the address of the custodial agency, thereby substantially complying with this legislative mandate. 3 Accordingly, this office affirms the response of the LMPD to Mr. Miles' request.
As evidenced by the record, Mr. Miles received the response of the LMPD (November 3, 2005) to his separate but partially duplicative request (October 31, 2005) after initiating this appeal on October 24, 2005; Mr. Miles was consequently unable to perfect an appeal as to the request. In other words, any issues raised by Mr. Miles' second request are not ripe for review by this office. If Mr. Miles has forwarded payment to the LMPD and received copies of the responsive records, any related issues are moot. 4 Because the LMPD has agreed to honor Mr. Miles' request upon receipt of the applicable fees, the response is not properly characterized as a denial. 5
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 Although the LMPD allegedly failed to respond, the record refutes this contention; however, this office is not equipped to resolve such factual disputes. 03-ORD-061, p. 2, citing OAG 89-81, p. 3; See 05-ORD-153; 04-ORD-036; 03-ORD-204. Because the record does not contain sufficient information concerning the actual delivery and receipt of Mr. Miles' request for this office to conclusively resolve the related factual discrepancy, this office finds no violation by the LMPD in this regard.
2 [ILLEGIBLE FOOTNOTE]
3 In accordance with the express terms of KRS 61.872(4), the LMPD should also provide Mr. Miles with the name of the official records custodian at the SPD.
4 40 KAR 1:030 Section 6 provides: "Moot complaints. If 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." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied, but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140.
5 With respect to the reasonableness of the fees imposed and the requirement of advance payment, the following excerpt is instructive:
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." See also KRS 61.874(1) ("When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate"); KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing"). As evidenced by the foregoing, the Open Records Act contains no provision mandating the waiver of fees for any party regardless of his or her financial status. See 99-ORD-30 (no waiver of reproduction charges for inmates); 94-ORD-90 (no waiver of reproduction charges for media representative). "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 80-641; OAG 79-582; OAG 79-546. Accordingly, the Division acted in compliance with the Open Records Act in requiring prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, and enforcing a standard policy relative to assessment of the charge. See also 99-ORD-179; 98-ORD-95.
05-ORD-230, pp. 6-7.