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 Russellville Police Department violated the Open Records Act in the disposition of Ricky Fulcher's April 26, 2006, request for records pertaining to incident 2001-18483. For the reasons that follow, we affirm RPD's denial of his request.
By letter dated May 1, 2006, Chief Barry Dill notified Mr. Fulcher that the referenced incident was not investigated by RPD. He explained:
Officer [Craig] Phillips' 1 only involvement was placing a phone call to the EOC in regards to information he received from another source. The incident occurred outside of the city limits of Russellville and was responded to by the Logan County Sheriff's Office. The [RPD] did not have involvement in the incident and therefore we did not prepare a report of the incident in question.
On this basis, Chief Dill concluded, RPD was unable to furnish Mr. Fulcher with the requested documentation. Nevertheless, Chief Dill suggested that Mr. Fulcher submit his request to Wallace Whitaker, Logan County Sheriff. Shortly thereafter, Mr. Fulcher initiated this appeal, arguing that the Logan County EOC CAD Incident Detail confirms Officer Phillips' involvement.
Unable to resolve the issue on appeal on the facts presented, this office propounded a series of questions to the RPD, under authority of KRS 61.880(2)(c), 2 on June 23, 2006. Our questions, and RPD's responses, follow:
1) Please elaborate on Officer Phillips' role in this incident and on your statement that his "only involvement was placing a phone call to the EOC in regards to information he received from another source."
Officer Phillips lives within the county of Logan beyond the City limits of Russellville. In this incident the complaining party, who was not the victim, called his home, while Phillips was off-duty, and reported the incident to Phillips. Phillips called the EOC to have an on-duty Deputy with the Logan County Sheriff's Office to respond to the incident in an attempt to locate the subject with a gun.
2) Please respond to Mr. Fulcher's assertion that Officer Phillips' 11:08 call back, following his original call at 10:49, is indicative of his continued involvement.
Phillips received another phone call from the same informant that told him where the victim was last seen. Phillips reported this to the EOC in his second phone call to them.
3) Please provide a brief description of the RPD's jurisdictional limits in conducting investigations, citing any supporting legal authority, and indicate if there are any circumstances that warrant extrajurisdictional investigations.
The Russellville Police Department serves within the jurisdictional boundaries of the City of Russellville. We maintain County wide jurisdiction by statute but typically do not "work cases or do reports" unless requested by the Sheriff's Office, outside of the City limits.
In light of these responses, we affirm RPD's denial of Mr. Fulcher's request on the basis of its inability to produce records that are not in its custody.
It is a well-entrenched principle of open records law that a public agency cannot produce for inspection and copying a record that does not exist or is not in the agency's custody. See, e.g., OAG 86-38; OAG 91-101; 93-ORD-51; 96-ORD-164; 99-ORD-108; 03-ORD-220. An agency denial that is premised on the unavailability of the requested record must be accompanied by a "clear and direct" statement to this effect. 02-ORD-145, p. 3, citing 97-ORD-16; 01-ORD-38. Chief Dill discharged RPD's duty under the Open Records Act by affirmatively indicating that the records to which Mr. Fulcher requested access are not in RPD's custody owing to the fact that RPD did not conduct an investigation into this incident. Chief Dill discharged the only remaining agency duty under the statute by furnishing Mr. Fulcher with the name of the official custodian of the requested records, the Logan County Sheriff, per KRS 61.872(4). 3
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Because the Russellville Police Department did not investigate the incident to which Mr. Fulcher referred in his request, the Department does not have the records he seeks. Simply put, the RPS is not the custodian of those records. The question presented in this appeal is factual, and not legal, in nature.
In the absence of contradictory evidence, we have no reason to doubt Chief Dill's assertion that the requested records are not in the Department's custody. We therefore affirm the denial of Mr. Fulcher's request.
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.
Ricky Fulcher, # 162001 5-2-A-13Kentucky State Penitentiary266 Water StreetP.O. Box 5128Eddyville, KY 42038
Barry DillChief of PoliceRussellville Police Department104 S.W. Park SquareRussellville, KY 42276
Bob Hedges175 W. 4th StreetRussellville, KY 42276
Footnotes
Footnotes
1 Officer Phillips is employed by the Russellville Police Department.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The 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.)
3 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.