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 Auburn Police Department violated the Kentucky Open Records Act in denying the request of Bryan Lee Reinhardt for a copy of "the incident report generated by APD Office John Hancock" during a "Routine Traffic Stop" between the hours of "22:08" and "23:27"on December 29, 2002, and "any/all" records concerning the incident. By undated letter, Chief Scott Harmon advised Mr. Reinhardt that he "personally searched through all of [the APD] files and records," but "found nothing to do" with his case. In addition, Chief Harmon spoke with Officer Handcock regarding Mr. Reinhardt's case "and he states that he never did a police or incident report" on Mr. Reinhardt's case "because he was not the arresting officer. " Officer Hancock is "no longer employed at the [APD]." As further explained by Chief Harmon:
You had also produced a copy of our officer CAD system with your letter. It states that Officer Handcock was in fact, at the scene of your arrest but when he went to leave the scene, he radioed into the dispatch stating that he was "10-98 code 55," which in plain language means "a report to be done." In this case, if you will look at the following transmission, it states, "disregard the last transmission. " This clearly means that Officer Handcock stated that he was not going to do a report on this incident. He (Officer Handcock), told me that he did not do a report because Deputy Bibb was the arresting officer.
By letter dated October 4, 2006, Mr. Reinhardt initiated this appeal from the denial of his request. 1
Upon receiving notification of Mr. Reinhardt's appeal from this office, Chief Harmon supplemented his original response. As previously indicated, Chief Harmon has "no records of a report filed by Officer Handcock in [regard] to Mr. Reinhardt's case." Chief Harmon "went over the CAD report several times" and has "come to the conclusion by checking with Officer Handcock that no report was made in this incident." Nothing more is required of the APD.
In our view, 06-ORD-040, 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 afford a requester access to nonexistent records or records which the agency does not possess. Having conducted a search using methods that could reasonably be expected to produce the records at issue, the APD complied with the Open Records Act, regardless of whether the search yielded any results, by notifying Mr. Reinhardt in writing that no records exist, and providing a credible explanation of why no such records were generated. Id., p. 4, citing O5-ORD-109, p. 3.
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 Contrary to Mr. Reinhardt's assertion that Chief Harmon violated KRS 61.880(1) and KRS 61.872(5) in failing to issue a written response within three business days after receiving his request, the APD had five business days in which to respond upon receipt of Mr. Reinhardt's request in accordance with KRS 197.025(7). See 04-ORD-046; 01-ORD-226. Although the record is unclear on this point, Mr. Reinhardt's request is dated September 11, 2006, while Chief Harmon's undated response is postmarked September 22, 2006. Allowing time for delivery, and excluding the weekend of September 16-17, 2006, from the calculation, it appears that Chief Harmon responded within the permissible time frame; if not, any delay was minimal.