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 Monroe County Sheriff's Department violated the Kentucky Open Records Act in failing to respond upon receipt of the request submitted by James Harrison for a copy of "the logs and documentation associated with" the arrest of Eugene McCarty in 2005 and the confiscation of his property. Because the Department does not possess any records which are responsive to Mr. Harrison's request, the Department ultimately complied with the Open Records Act by affirmatively indicating as much to Mr. Harrison in a written response, offering a credible explanation for the lack of records, and providing him with the name and location of the custodial agency in accordance with KRS 61.872(4).
In a letter directed to Jerry Gee, Monroe County Sheriff, on August 6, 2007, Mr. Harrison advised that in the "early part of 2005" his department, "in conjunction with the police department," had "picked up Eugene McCarty from the Barren County Authorities on an arrest warrant and confiscated . . . $ 347.00 from him during this time." Pursuant to the Open Records Act, Mr. Harrison requested "the logs and documentation associated with that arrest and confiscation of property." Having received no response to his request, Mr. Harrison initiated this appeal by letter dated August 28, 2007, noting that his request to the Monroe County Jailer dated August 6, 2007, also went unanswered. Upon receiving notification of Mr. Harrison's appeal from this office, Sheriff Gee responded via facsimile on behalf of the Department, 1 advising that the "Sheriff's Dept. and City Police are two different departments. This case is a City case and I don't have anything on it." Accordingly, Sheriff Gee referred Mr. Harrison to "the City" and provided him with the following address:
Tompkinsville City Police
206 N. Magnolia
Tompkinsville, KY 42167
Attn: Roger Dale Ford[, Chief]
Because Sheriff Gee cannot produce for inspection or copying that which he does not have, nor is there any evidence to refute this credible assertion, nothing more is required of the Department.
As a public agency, the Department is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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.
(Emphasis added). In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount to [] substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). See 05-ORD-134, pp. 3-5. Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule are found at KRS 61.872(4) and (5), neither of which the Department invoked here. 02-ORD-165, p. 3.
As consistently recognized by the Attorney General, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Failing to respond in a timely and proper fashion, as the Department did here, constitutes a clear violation of KRS 61.880(1); the Department offers no explanation for this deficiency on appeal. In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id. To avoid future violations, the Department should issue a written response, within three business days of receiving a request, including a statement of the specific exception(s) authorizing the withholding of the records, and a brief explanation of how the exception(s) applies to the records withheld, if any. 2
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency obviously cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records for this reason, the Attorney General has consistently observed that a public agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has consistently held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist (or are in the custody of the agency) as the Department ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. 3 To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as in this case, the agency denies having possession (or indicates that no such records exist) of the requested records, and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. As in the cited decisions, the record is devoid of evidence to raise the issue of good faith; rather, the Department's explanation is entirely credible. However, the analysis does not end there.
Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Here, the Department affirmatively indicated that it does not possess or maintain the records being sought, briefly explained why any responsive records would be in the custody of the TPD, and provided Mr. Harrison with contact information for that agency in accordance with KRS 61.872(4); nothing more is required. Assuming the Department made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record indicates, the Department cannot be said to have violated the Act in this regard. 05-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 By letter dated September 25, 2007, Mr. Harrison advised that "as of today's date, I have not received anything from" the Department; Sheriff Gee's response does not indicate that a copy was forwarded to Mr. Harrison in accordance with our notification which, in relevant part, reads: "Pursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal. The agency must send a copy of its response, and any accompanying materials, to the complaining party." Accordingly, the Department should forward a copy of its response dated September 11, 2007, to Mr. Harrison if it has not already done so.
2 Although the Department belatedly complied with this provision, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the original denial.
3 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.