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 Louisville Metro Police Department violated the Open Records Act in its disposition of Kerry Porter's July 20, 2006, open records request, received by the Department on July 28, 2006, to inspect:
"any and all document ed Reports, Statements, Memorandums, Reorded (sp) Tips, etc., in regards to Cecilia Ann Camp (now Celia Ann Sanders) and/or Jaun Leotis Sanders as being suspects in the Murder investigation of Mr. Tyrone C. Camp (Celia's Husband's Murder) ."
By letter dated August 1, 2006, Alicia M. Smiley, Media Relations Specialist, responded to Mr. Porter's request, on behalf of the Department, advising him as follows:
Please be advised that a review of the investigative file for the murder of Tyrone C. Camp did not locate any records listing Cecilia Ann Camp (Sanders) or Jaun Leotis Sanders as suspects in the Murder investigation of Tyrone Camp. This office did locate 10 documents that make reference to Ms. Camp and Mr. Sanders during the course of the investigation. If you would like to receive these records please forward a check or money order, payable to Louisville Metro Police, in the amount of $ 1.39 (10 pgs. X $ .10 + $ .39 postage) and the records will be mailed to your attention.
In his letter of appeal, dated July 31, 2006, Mr. Porter asked this office to review his suspicion that the Department had failed to fully comply with the open records laws. 1
After receipt of Notification of the appeal, Ms. Smiley provided this office with a response to the issues raised in the appeal. In her response, Ms. Smiley, in relevant part, stated:
Mr. Porter's request specifically asked for any records regarding the investigation of Cecilia Ann Camp and/or Jaun Leotis Sanders as suspects in the murder investigation of Mr. Tyrone Camp. As the enclosed response to Mr. Porter indicates (Attachment A) the investigative files for Tyrone Camp does not contain any records referring to either Ms. Camp or Mr. Sanders as murder suspects. Mr. Porter was advised that records did exist citing the names of Ms. Camp and Mr. Sanders, and that these records could be obtained for a pre-paid fee of $ 1.39. Mr. Porter was further advised this office reviewed the investigative file before determining that the specific records he requested could not be located. Mr. Porter was never advised that his request was directed to the wrong agency nor was his request denied. Further this office found no reason to redact any information from records that could not be located.
For the reasons that follow, we conclude that the actions of the Louisville Metro Police Department relative to Mr. Porter's request did not violate the Open Records Act.
This office has long recognized that a public agency cannot honor a request for records that it does not possess or records which do not exist. 05-ORD-272, p. 3. The Department obviously cannot produce for inspection records that do not exist. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed:
[A]n 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. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3.
In order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records at a minimum. 05-ORD-272, p. 4. In its initial response to Mr. Porter's request and the supplemental response to the letter of appeal, the Department advised that a review of the investigative file for the murder of Tyrone C. Camp did not locate any records listing Cecilia Ann Camp (Sanders) or Jaun Leotis Sanders as suspects in the Murder investigation of Tyrone Camp. The Department affirmatively advised Mr. Porter that records responsive to his request did not exist and explained that it had reviewed the investigative file of Mr. Camp's murder, before reaching that conclusion. The Department discharged its duty under the Open Records Act by affirmatively so advising Mr. Porter of that fact. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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. Porter's suspicions may be related to the time gap between the mailing and receipt of his July 20, 2006, request by the Department, which indicated was received on July 28, 2006, and the fact that he initiated his appeal on July 31, 2006, one day before the August 1, 2006, response of the Department. Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Porter's open records request and, thus, we do not address this issue. See, 03-ORD-61.