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 Lexington-Fayette Urban County Government Division of Police violated the Open Records Act in the disposition of Jermaine Vonzell Martin's requests for records relating to "a 'sting operation' conducted by . . . Det. Matt Brotherton, Det. William Brislin, Sergeant Dawson, Lieutenant Curless, and Det. Jewell . . . on January 5, 2003, spanning from Fayette County to Northern Kentucky, to the Dry Branch Exit." Specifically, Mr. Martin requested:
. certified copies of time cards and activity sheets for all officers listed . . . for the date of January 5, 2003, and
. [a] copy of documentation signed by [Chief Anthony Beatty] 1 authorizing the . . . "sting operation" conducted by the officers on the date listed herein.
On behalf of the Division of Police, Lieutenant James A. Curless responded to Mr. Martin's request by letter dated November 14, 2006, 2 advising him that the requested documents would be mailed to him upon receipt of copying and mailing costs, 3 but indicating that the Division "no longer maintains activity sheets for all officers listed . . . for the year . . . requested," and that his second request "is not specific and does not exist as requested." For the reasons that follow, we find that the Division properly denied Mr. Martin's request for activity sheets on the basis that those records do not exist, but improperly characterized his request for written authorization for the January 5, 2003, sting operation as "not specific."
With reference to activity sheets, the Division denied Mr. Martin's request on the basis of their nonexistence. Although the Division provided no accompanying explanation, we assume that the responsive activity sheets were properly destroyed pursuant to the applicable retention period established in the Lexington/Fayette Urban County Government Records Retention Schedule. Series L4910, Officer's Daily Activity Report (copy enclosed), is described as a record "submitted by each law enforcement officer for the purpose of documenting all official duties during a given day." Such records must be retained at the agency for one year and may thereafter be destroyed. The activity sheets that Mr. Martin requested were nearly three years old at the time of his request, and were presumably destroyed under the authority of the Division's records management policies.
As this office has so often noted, "a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody." 93-ORD-51, p. 4. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. The Kentucky Open Records Act was amended in 1994, and now recognizes "an essential relationship between the intent of [the Act] and that of KRS 171.740, dealing with the management of public records . . . ." KRS 61.8715 . Although there may be occasion 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 exists, we do not believe that this appeal warrants additional inquires. Because the activity sheets were properly destroyed in the normal course of business, their nonexistence does not raise records management issues. The Division's response to this portion of Mr. Martin's request was consistent with the provisions of the Act insofar as it cannot make available for inspection documents which it no longer has in its possession. 4
Assuming that the two pages of responsive records located do not consist of time cards, 5 this analysis extends to that portion of Mr. Martin's request as well. Record Series L4862, Daily Attendance Report, and L4864, Time Cards, (copy enclosed) both require retention at the agency for two years followed by destruction after audit. As noted above, the requested time cards were nearly three years old at the time of Mr. Martin's request and were presumably destroyed in a manner consistent with proper records management practices. Nevertheless, we believe that the Division was obligated to issue an appropriate denial of Mr. Martin's request for time cards by notifying him that it no longer maintains those records. An 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; 01-ORD-59; 01-ORD-220. The Division clearly and directly notified Mr. Martin that it no longer maintains the requested activity sheet. Assuming the Division no longer maintains them, the Division is also obligated to notify him that the requested time cards do not exist.
We are not persuaded that the Division properly characterized Mr. Martin's final request as insufficiently specific. With respect to the degree of precision required in framing an open records request, this office has observed:
An open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island 1978). Instead, the requester should submit a "brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6; 01-ORD-51; 06-ORD-028. In an unpublished opinion, the Kentucky Court of Appeals has gone one step further and declared that a records description is adequate if it enables the agency's custodian to "identify what documents the applicant[] wish[es] to see . . . ." Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005). 6
We find that Mr. Martin's request satisfies this standard. It is limited by time (January 5, 2003), by place ("Fayette County to Northern Kentucky, to the Dry Branch Exit"), and by subject (written authorization for the sting operation conducted on that date and in that place, and signed by Chief Beatty). The Division is no doubt in a position to determine if written authorization was required for the June 5, 2003, sting operation, and should have in place a records management policy that provides a mechanism by which a responsive record or records can be located. Accord, 04-ORD-028, p. 10 ("Although we do not speculate regarding the records management procedures adopted by [the agency], it stands to reason that a mechanism exists by which the [agency's] records custodian can locate and retrieve" records of an identified, limited class); see also, 06-ORD-032. The fact that the Division could affirmatively state that a record "does not exist as requested," suggests that a record may exist, of which the Division is aware, that is similar to, but does not mirror, Mr. Martin's request. If so, we believe it is incumbent on the Division to produce this record unless the Division can advance a statutorily recognized basis for denying inspection. To hold otherwise would be to approve a denial based on a narrowing legalistic interpretation of Mr. Martin's request that is at odds with the fundamental premise of the Open Records Act, namely, that free and open examination of public records is in the public interest. KRS 61.871.
Having so concluded, we nevertheless remind Mr. Martin of the limits of our role under KRS 61.880(2). That statute directs the Attorney General to "review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays, and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." Mr. Martin objects that the response issued by the Division of Police was prepared by Lieutenant Curless notwithstanding the fact that his request was addressed to Chief Beatty and that Lieutenant Curless "is a crucial focal point of the inquiry . . . [and may be] attempting to curtail what will undoubtedly be the discovery of misconduct . . . ."
This office is not empowered to designate what public official should act as a public agency's official custodian of records. That term is defined at KRS 61.870(5) as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" (Emphasis added.) The Open Records Act contemplates the appointment of an official custodian of records at KRS 61.872, 61.876, and 61.880. The latter provision states that an agency response to an open records request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action." KRS 61.880(1) (emphasis added). Assuming, arguendo, that Lieutenant Curless is not the Division's official custodian, he is not foreclosed from responding on behalf of the Division so long as he does so "under [the official custodian's] authority." In the absence of evidence that Lieutenant Curless was not acting under the authority of Division's official custodian, we find no error in the Division's actions.
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. Martin's request was addressed to Chief Beatty.
2 Mr. Martin contests the timeliness of the Division's response to his requests, noting that his first request, dated October 24, 2006, was mailed from his mother's residence in Louisville, Kentucky, not from Northpoint Training Center, and that it contained "a U.S. Money Order for an amount well more than necessary to cover the expense of copying costs as set forth in [the Division's November 14 response]." He further notes that a second copy of the request was mailed to the Division on an undisclosed date, although it, too, was dated October 24, 2006. We must infer from these facts that Mr. Martin's first request, which included his money order, did not reach the Division or was misplaced. Inasmuch as he does not indicate the date on which he mailed his second request, we are not equipped to resolve the factual dispute concerning the timeliness of the Division's response. As for the missing money order, Mr. Martin presents no proof of its existence, such as a copy, and we are again not equipped to resolve the factual dispute relating to its existence and receipt.
3 It is unclear what records the Division located and is prepared to release to Mr. Martin upon receipt of copying and postage charges. Based on the fifty-nine cent charge imposed, we assume the Division located two records, assessing a charge of ten cents per page for those two pages and thirty-nine cents for postage. The responsive records would not appear to consist of time cards, inasmuch as Mr. Martin requested five, rather than two, time cards, and the Division has denied the existence of activity sheets as well as written authorization for the January 5, 2003, sting operation signed by Chief Beatty. We believe that Mr. Martin is entitled to know what he is paying for before he pays for it, and that it is incumbent on the Division to provide him with a brief written description of the responsive records located.
4 The fact that the Kentucky State Police furnished Mr. Martin with the corresponding record for KSP officers involved in the sting operation has no bearing on the outcome of this appeal. The Justice and Public Safety Cabinet's records retention schedule provides for a one year retention of Trooper Monthly Activity Reports at Series 00143. Under proper records management practices, these records should have also been destroyed. Because they were not, KSP was obligated to produce them in response to Mr. Martin's request.
5 See note 3, above.
6 Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-000086).
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