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 Cumberland Police Department violated the Kentucky Open Records Act in the disposition of Samuel J. Coleman's request for a copy of the audiotape recorded on July 17, 2005, by Officer Scott Bailey of Miranda rights being read to him. Although the CPD violated KRS 61.880(1) in failing to issue a written response within three business days of receiving the request, the CPD cannot produce for inspection or copying a record which does not exist or which it does not possess; however, the CPD erred by failing to provide any explanation for the nonexistence of the record in belatedly denying access on that basis.
By letter dated February 7, 2007, Mr. Coleman initiated this appeal from the "refusal of the Cumberland Police Department" to respond upon receipt of his request dated January 4, 2007; attached to his letter of appeal is a copy of a certified mail receipt signed by someone on behalf of the CPD on January 8, 2007. Upon receiving notification of Mr. Coleman's appeal from this office, S. Parker Boggs, Cumberland City Attorney, responded on behalf of the CPD, advising this office that Chief Derrick Akal had informed him that "the City of Cumberland does not have the requested audio recording." Without further elaboration, this response does not satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), as evidenced by prior decisions of this office.
In our view, the analysis contained in 06-ORD-012, a copy of which is attached hereto and incorporated by reference, is controlling as to application of KRS 61.880(1); the response of the CPD is untimely even assuming the extension of time (five business days) in which to issue a written response authorized by KRS 197.025(7) is applicable on the facts presented. Likewise, the reasoning of 05-ORD-024 (upon which 06-ORD-012 is based in part), is equally determinative regarding the obligations of a public agency upon receipt of a request for nonexistent records. A copy of 05-ORD-264 is attached hereto and incorporated by reference. Although a public agency such as the CPD cannot be expected to produce a record which does not exist, nor does the record on appeal contain any evidence of bad faith or willful concealment by the CPD, a public agency must offer some explanation for the nonexistence of the record in order to satisfy its burden of proof. Id. at p. 4. Insofar as the response of the CPD is silent on this issue, the response is deficient.
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.
Samuel J. ColemanKY DOC # 186336Northpoint Training CenterP.O. Box 479Burgin, KY 40310-0479
Chief Derrick AkalCumberland Police Department1509 East Main StreetCumberland, KY 40823
S. Parker BoggsCumberland City AttorneyP.O. Box 875108 South First StreetHarlan, KY 40831