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 Georgetown violated the Open Records Act in the disposition of Tammie T. Nava's January 12, 2005, request for "a copy or transcript of" her "911 calls on 1/3/05 [approximately equal to] 9 - 11 p.m. Mon" and "the log on the call . . . ." For the reasons that follow, we find that the city violated the Act in failing to respond in writing, and within three business days, to Ms. Nava's request, and in indefinitely postponing access to the requested tape and log or alternatively advising her that the requested records could not be located and why.
Ms. Nava submitted the open records request that is the subject of this appeal on January 12, 2005. The record on appeal suggests that she never received a written response to that request. In supplemental correspondence directed to the Attorney General following commencement of this appeal, Georgetown City Attorney Charlie Perkins references Ms. Nava's separate request for three tapes, which has since been honored, and which was the subject of an April 5, 2006, letter from the office to Ms. Nava confirming this fact and invoking 450 KAR 1:030 Section 6 as the basis for "mooting" the related appeal. Mr. Perkins references her pending request and appeal only once in the course of his April 10, 2006, letter, noting that she has "requested a fourth tape, for which she notes Captain Jones of the Police Department is assisting with the search." We received no additional correspondence from the city advising us of any subsequent developments. Inasmuch as more than one year has elapsed since Ms. Nava submitted her request, and she has received no formal response from the City of Georgetown of any kind, we find that the city's disposition of her request was both procedurally and substantively deficient.
KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "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. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
To date, Ms. Nava has received no written response of any kind to her open records request. The city's inaction in this regard constitutes a violation of the Open Records Act. In correspondence directed to this office in a separate appeal, Mr. Perkins advised that he has issued instructions to all city offices "reminding them that all responses to open records requests must be timely and in writing." 1 This does not, however, mitigate the earlier, and as yet uncorrected, violation. Ms. Nava is entitled to immediately inspect, and obtain a copy of, the requested tape and log or to a written response from the city apprising her of the existence or nonexistence of the records, what efforts were or are being made to locate them, and the earliest date certain when she may expect final resolution of this matter. Continued inaction on the part of the city is not a viable option. Accord, 01-ORD-38.
With reference to the substantive issues in this appeal, we note that the Attorney General has long recognized that an agency's inability to produce records due to their nonexistence, regardless of whether their nonexistence is attributable to destruction or loss, is tantamount to a denial, and that it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD-59; 02-ORD-144; 04-ORD-108. While it is obvious that an agency cannot produce that which it does not have or which no longer exists, a written response that does not clearly so state is deficient. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-116. Assuming the City of Georgetown conducted an unproductive search upon receipt of Ms. Nava's request, we question why the city did not immediately advise her that the requested records could not be located and explain why. If it did not conduct a search until Ms. Nava initiated this appeal, its efforts in this regard were deficient. 911 tapes and logs that existed on January 12, 2005, some nine days after the 911 calls were placed and presumably recorded in 911 dispatch logs, might well have been destroyed in the succeeding months.
In KRS 61.8715, the General Assembly recognized "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, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to these statutes." It is clearly understood that a public record which is the subject of a pending open records request, or a dispute arising therefrom, cannot be destroyed. 03-ORD-005; 04-ORD-108. While there is no evidence in the record before us that the City of Georgetown willfully concealed or destroyed records responsive to Ms. Nava's request, we urge the agency to implement measures aimed at insuring accountability and access through proper records management. In that spirit, we have referred this matter to the Department for Libraries and Archives for any further inquiry that agency deems warranted.
Ultimately, the City of Georgetown has denied Ms. Nava timely access to record relating to her January 3, 2005, 911 call, or, alternatively, final resolution of this matter by means of formal notification that those records do not exist. It is incumbent on the city to rectify this violation of the Open Records Act by immediately producing the records for her inspection or issuing a formal written denial to her based on the records' nonexistence. Until it has done so, the city's duties under the Open Records Act will not be fully discharged.
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 See March 15, 2006, letter to this office from Mr. Perkins and part of the record on appeal in Open Records Log Number 200600137.