Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in failing to honor Kerry Porter's request "to inspect any and all documented records or memorandums concerning Det. Rodney Kidd not complying with the [LMPD's] 'Policies and Procedures'" within three business days in contravention of KRS 61.880(1) and KRS 61.872. Having allegedly received no response to his request of August 18, 2006, Mr. Porter initiated this appeal by letter dated August 28, 2006. Because the LMPD made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, the LMPD complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Porter in writing that no responsive records exist, and providing a credible explanation for the nonexistence of such records. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-138; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38.
Upon receiving notification of Mr. Porter's appeal from this office, Alicia M. Smiley, Public Information Specialist, responded on behalf of the LMPD. As explained by Ms. Smiley:
Mr. Porter's request was dated Wednesday, August 16, 2006 and postmarked in West Liberty, Kentucky on Thursday, August 17, 2006 (Attachment A). His request was received by the [LMPD's] Public Information Office, located in Louisville, Kentucky, on Tuesday, August 22, 2006. A response was written to Mr. Porter the same day and mailed the following Wednesday, August 23, 2006. Consequently, the response to Mr. Porter's request was well within the three day period mandated by the Open Records Law.
In his request, (Attachment B) Mr. Porter specifically asked for "any and all documented records or memorandums concerning Det. Rodney Kidd not complying with the Louisville Police 'Policies and Procedures.' In particular, in violation(s) of Policies and/or Procedures during the Homicide Investigation of Mr. Tyrone C. Camp, Case No. 96324...." As the enclosed response indicates, (Attachment C) Mr. Porter was advised that this office reviewed Detective Kidd's personnel files as well as the homicide file for Tyrone Camp. Neither of these files [contained] any records showing that Detective Kidd failed to comply with the [LMPD's] Policies and Procedures. This office did not deny any records to Mr. Porter and found no reason to redact information from records that could not be located.
Mr. Porter presumes that Detective Rodney Kidd violated police policy and procedure and that records indicating this violation exist. Since no disciplinary actions or reprimands were located in Detective Kidd's personnel file or in the homicide file for Tyrone Camp, it can be concluded that no wrongdoing was found on Detective Kidd's part. This office is unable to locate any violation of KRS 61.872 as cited by Mr. Porter for failing to state that the "record did not exist." Mr. Porter was not advised to address his request to another agency because the [LMPD] maintains all records relating to homicides and its employees' personnel files.
Attached to Ms. Smiley's response is a copy of the postmarked envelope and the response directed to Mr. Porter on August 22, 2006, both of which validate her argument.
In our view, 05-ORD-108, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. As long recognized by the Attorney General, a public agency cannot produce for inspection or copying nonexistent records. Having issued a timely written response indicating that no records exist which are responsive to Mr. Porter's request, and providing a credible explanation as to why none were ever created, the LMPD discharged its duty under the Open Records Act; nothing more is required.
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.