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 the Madisonville Police Department violated the Open Records Act in failing to respond to John Yarbrough's September 7, 2006, open records request for audio and print dispatch records for 10:00 p.m. Dec. 31, 200[5] to 01:00 p.m. Jan. 01, 2006, as well as "SRN and Call to service printouts, accident reports, radio logs, blotters and any other record that was made during this period." We conclude that the failure of the Department to respond to Mr. Yarbrough's request constituted a violation of the Act.
Having received no response to his request, Mr. Yarbrough, by letter dated October 2, 2006, initiated this open records appeal. On October 5, 2006, the Attorney General sent a copy of Mr. Yarbrough's letter of appeal, along with our notification of receipt of open records appeal, to the Department and the Madisonville City Attorney. Although that notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response to our notification, and have not been advised what, if any, action the Department has taken relative to Mr. Yarbrough's appeal.
The Department's failure to respond to Mr. Yarbrough's request in a proper and timely fashion constitutes a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Department had not one, but two, opportunities to comply with KRS 61.880(1), by responding to Mr. Yarbrough's original request, and by responding to his request upon receipt of this office's notification of appeal. The Department failed to do so.
Because the Department did not respond to Mr. Yarbrough's request, or to this office's notification of appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency . . . ." The Department's failure to respond to the open records request is tantamount to a denial of that request without specific support in the form of "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1); 02-ORD-116. Accordingly, the Department, if it has not already done so, should immediately respond to Mr. Yarbrough's request or otherwise make the records available for his inspection, unless the agency can meet its burden of proof by articulating a basis for denying access under the exceptions set out in KRS 61.878(1). 1 If Mr. Yarbrough wants copies of the requested records, the Department may require prepayment for copies.
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 proceedings.
Footnotes
Footnotes
1 If no records exist which areresponsive to Mr. Yarbrough's request, the Department must affirmatively so advise Mr. Yarbrough in writing. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their 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 [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 so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Department must ascertain whether records exist which are responsive to Mr. Yarbrough's request and promptly advise him of its findings.