Request By:
Ralph Priddy, ChairmanSteve Hendley
Assistant Chief of Police
City of Mayfield Police Department
211 East Broadway
Mayfield, KY 42066S. Boyd Neely, Jr.
City Attorney
P.O. Box 708
Mayfield, KY 42066-0034
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 City of Mayfield and the City of Mayfield Police Department violated the Open Records Act in the disposition of Ralph Priddy's October 29, 2007, request for access to records "pertaining to obtaining and executing a search warrant . . . [including] guideline[s] on leaving a copy of a search warrant at the residen[ce]." Mr. Priddy indicates that he submitted his request to the Mayfield Police Department at the direction of Mayfield City Clerk Tamie Johnson, to whom he first directed his inquiry. For the reasons that follow, we find that although these agencies cannot produce for inspection and copying nonexistent records, and that they ultimately discharged their function by so advising Mr. Priddy, their handling of his request was inconsistent with the Open Records Act to the extent they attempted to enforce those "policies and procedures adopted by the City of Mayfield in regard to open records requests" that deviate from the requirements of the Act.
By letter dated November 1, 2007, Assistant Chief of Police Steve Hendley responded to Mr. Priddy's request, advising him that his "request [did] not comply with the policies and procedures adopted by the City of Mayfield in regard to open records requests." He urged Mr. Priddy to "check with the Custodian of Records, Tamie Johnson, regarding these policies and procedures and the correct forms on which to submit any future requests." Continuing, Assistant Chief Hendley observed:
[I]nformation pertaining to the obtaining and execution of search warrants and any guidelines regarding leaving a copy of the search warrant at the residence is governed by the Fourth Amendment to the United States Constitution and the caselaw interpreting those provisions. These are not business records of the City of Mayfield, Kentucky.
In closing, Assistant Chief Hendley reiterated, "The U.S. Constitution and caselaw interpreting the same are utilized in obtaining and executing a search warrant by the police officers of the City of Mayfield, Kentucky." Shortly thereafter, Mr. Priddy initiated this open records appeal asserting that he had been given "the run around in obtaining these records . . . ."
In supplemental correspondence directed to this office following commencement of Mr. Priddy's appeal, Mayfield City Attorney S. Boyd Neely, Jr., elaborated on these agencies' handling of his request. It was his position that "Mr. Priddy refused to follow the procedure set up for open records requests which have [sic] been adopted by the City of Mayfield pursuant to statute," but that "the City nevertheless responded in a timely fashion." 1 Characterizing Mr. Priddy's request as "broad and vague," he explained that these agencies "presumed that he was requesting written documentation such as policies and procedures regarding the execution and issuance of a search warrant. " He emphasized that the agencies have no written policies and procedures "regarding the issuance and execution of a search warrant as any such policy and procedure would be superceded by the United States Constitution," and insisted that "[t]his was plainly pointed out to Mr. Priddy in the City's response."
Although it is clear that these agencies cannot produce for inspection and copying records that they do not maintain, it is not so clear that the agencies discharged their duty to "plainly point[]" this out to Mr. Priddy in their original response. Nor is it clear that the "procedure set up for open records requests which have [sic] been adopted by the City of Mayfield" is consistent with the requirements of the Open Records Act. To the extent that it is not, that procedure violates the Act.
It is well established that a public agency cannot afford a requester access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. Moreover, it is not within our statutory charter to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such irreconcilable differences. However, in 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirement of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id .
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 00-ORD-120 (x-rays of inmate's injuries not taken and therefore responsive record did not exist); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention requirements and were therefore not available for review).
In the Police Department's supplemental response to Mr. Priddy's open records appeal, the Department indicates that it adheres to the United States Constitution's Fourth Amendment, and caselaw interpreting it, in obtaining and executing search warrants, and that "these are not business records of the City." The Department did not expressly deny the existence of responsive records at this juncture, although their nonexistence could arguably have been inferred. In the supplemental response issued by the City, Mr. Neely expressly denied the existence of responsive records, describing the methodology employed in obtaining and executing search warrants, and reiterating that any other methodology "would be superceded by the United States Constitution." 2 The agencies belatedly offered a reasonable explanation for the nonexistence of the particular policies and procedures sought. In the absence of a showing that such policies and procedures actually do exist, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), to affirm the agencies' denial of Mr. Priddy's request on the basis of the nonexistence of responsive records. While there may be occasions when, under the mandate of KRS 61.8715, the Attorney General refers an open records appeal and decision to the Department of Libraries and Archives for further inquiry under Chapter 171, we do not believe that this appeal warrants additional inquiry.
Having so concluded, we are nevertheless bound to comment on the apparent procedural irregularities associated with the agencies' handling of Mr. Priddy's request. Just as a local policy governing the execution of search warrants is superceded by applicable federal law, we believe that a local policy governing open records request is superceded by applicable state law, to wit , the Kentucky Open Records Act. Although the Police Department issued a timely written response to Mr. Priddy's request, it did so under protest, noting that he had refused to comply with "policies and procedures adopted by the City of Mayfield in regard to open records request." It was the City's and the Department's position that Mr. Priddy improperly made his request to the Department, instead of the city clerk, and that he improperly refused to use the open records request developed by the City. Mr. Priddy responds that he originally attempted to tender his request to the city clerk, but was advised that he must obtain the records from the Police Department.
While we are not equipped to resolve this conflict in the record on appeal, it is apparent that any local policy or procedure that deviates from the specific requirements of the Open Records Act constitutes a violation of the Act. This includes a requirement that the requester utilize an open records request form developed by the agency. KRS 61.872(2) thus provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
In construing this provision, the Attorney General has recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
94-ORD-101, p. 2. This position echoed an early open records opinion in which the Attorney General stated that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60 and 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information.
Moreover, at page 3 of 94-ORD-101, the Attorney General observed:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
Continuing, this office noted that the agency "violated the Open Records law when it ignored the application or request to inspect public records because it was not submitted on a particular form devised by the public agency, " and that the agency "was under a legal obligation to respond to the request within the statutorily mandated time frame . . . ." Id. at 3, 4.
Although the City of Mayfield and the Mayfield Police Department did not violate the Act by ignoring Mr. Priddy's request because he did not utilize the prescribed form, the local policy to which they referred him is clearly inconsistent with the requirement of the Open Records Act codified at KRS 61.872(2). 3 Neither the City nor the Department provided this office with a copy of the "policies and procedures adopted by the City of Mayfield in regard to open records requests." To the extent those policies and procedures do not mirror the statutory requirements found at KRS 61.870 through 61.884, they are invalid and have no force and effect. Thus, in 94-ORD-143 this office observed:
[T]he Attorney General has consistently recognized that a public agency cannot, by ordinance or any other legislative device, regulate access to public records in a manner which conflicts with the Open Records Act. OAG 82-435; OAG 82-518; 92-ORD-1136. In OAG 82-435, at page 2, we observed:
94-ORD-143, p. 2, 3; see also, OAG 82-518, p. 1 ("the Mayor does not have the authority to countermand the requirements of the Open Records Law" ). We urge the City of Mayfield, and its Police Department, to review these policies and procedures in light of our holding to insure that the policies and procedures fully conform to the requirements of the Act and that they are implemented in a fashion that facilitates and expedites public access.
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. Priddy again refuted this statement in a letter to this office submitted after he reviewed the agencies' supplemental response. He reiterated that upon submission of his written request to Ms. Johnson, she told him that he must obtain the records from the Police Department.
2 We reject these agencies' arguments that Mr. Priddy's request was impermissibly vague. Clearly, the agencies correctly interpreted his request as a request for policies and procedures governing the execution of search warrants, and we are therefore spared debate on the question of whether the request was sufficiently specific. As this office has often observed:
An open records request 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 . Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] 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, cited in 00-ORD-235; and 03-ORD-012.
3 We hasten to note that Mr. Priddy's request complied, in all particulars, with the requirements codified at KRS 61.872(2) insofar as it contained a description of the records to be inspected, his name printed legibly, and his signature.