Request By:
Wade McNabb, 186567
Chief Joseph W. Billman
E. V. Holder, Jr.
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Vanceburg Police Department violated the Open Records Act in the disposition of Wade McNabb's open records request for records referencing an allegation of child sexual abuse concerning named individuals reported in or around the year 2000. For the reasons that follow, we find that although the Department's disposition of Mr. McNabb's October 30, 2007, request was procedurally deficient, its response was consistent with the requirements of the Open Records Act.
In his letter of appeal, dated November 16, 2007, Mr. McNabb indicated that he had received no response to his request.
After receipt of notification of the appeal, Joseph W. Billman, Chief of Police, provided this office with a copy of the response that he had mailed to Mr. McNabb. In his response, he advised Mr. McNabb that they no longer keep records of misdemeanor charges in the Vanceburg Police Department and that his request had been forwarded to the Lewis County Circuit Clerk's Office. He further advised that since the Department had no record, they did not get back with him.
We are asked to determine whether the actions of the Vanceburg Police Department were in violation of the Open Records Act. For the reasons that follow, we conclude, that with the exception of procedural errors, the actions of the Department were proper and did not constitute a violation of the Act.
We address first the procedural errors. KRS 61.880(1) requires that a public agency respond to an open records request in writing within three business days. As noted above, the Department advised Mr. McNabb that because it did not have the requested records, it did not get back with him. The failure to respond to the requests within three business days advising Mr. McNabb that it did not have the requested records was a procedural violation of the Open Records Act.
We next address the substantive issue. The response of the Department advised Mr. McNabb that it no longer kept misdemeanor records, such as he requested, and forwarded his requests to the Lewis County Circuit Court Clerk. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Department discharged its duty under the Open Records Act by affirmatively advising Mr. McNabb that it did not have a copy of the requested records. 99-ORD-150.
Moreover, KRS 61.872(4) provides:
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.
Although KRS 61.872(4) requires the agency to only provide the name and location of the official custodian, the Department advised Mr. McNabb that his requests had been forwarded to the Lewis County Circuit Court Clerk. This was in substantial compliance with the requirements of KRS 61.872(4); 03-ORD-225. Accordingly, we find no violation of the Open Records Act in this regard.
Finally, the fact that the Department no longer keeps records of misdemeanor charges suggests a possible records management issue. Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880 and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. On this issue, this office has observed:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10.
Arguably, the records at issue in this appeal could fall within a number of records series. For example, see Local Governments, Law Enforcement, Records Retention Schedule, Records Series No. L4663, Investigations other than Felonies File, the disposition instructions for which require a retention period of five years; Records Series No. L4680, Complaint and Offense, the disposition instructions for which require a retention period of three years; Records Series No. L4686, Child Abuse, Adult Abuse and Domestic Abuse File, the disposition instructions for which require a retention period of eighty years. 1 Because the Department has advised that it no longer keeps misdemeanor records which may fall within a number of different record series, including others not enumerated above, we have referred this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted. Accord, 05-ORD-141; 01-ORD-176; 00-ORD-46; 98-ORD-200; 94-ORD-142.
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 The Record Title and Description of these record series, read as follows:Series No.Record Title and DescriptionL4663Investigations other than Felonies File (This record seriesincludes open, closed, suspended, active and inactiveinvestigative files for misdemeanors, violations andcitations that are not felonies. Each file may include acopy of the uniform offense report, uniform citationreport, the investigative report, evidence, photos ofcrime scenes, photos of suspects, interviews, statementfrom victims/witnesses/suspects, audio and video tapes,arrest warrants, fingerprints, lab information, criminalhistory information, correspondence, sub-poenas,citations, pleas, sentences and prosecution data). (C)KRS 17.150 (2)L4680Complaint and Offense Report (Incident Reports) A.K.A.Incident Report, General Investigative Report andIntelligence Report and is used to document complaintsand to begin the investigative process. May include alltypes of investigations, both felony and misdemeanorsuch as Dog Bite reports). (C) 61.878 (V)L4686Child Abuse, Adult Abuse and Domestic Abuse CaseFile (This record series documents investigationsconcerning domestic violence/abuse, physical abuse,neglect (adult), physical abuse/neglect (child), sexualabuse/exploitation (child), neglect by caretaker,exploitation (adult), sexual offenses (spouse) and maycontain the Child Abuse, Adult Abuse, and DomesticAbuse Standard Report, Crimes Against Children RiskReport, Confidential Suspected Abuse/Neglect,Dependence or Exploitation Reporting Form, Complaintand Offense Report and support documents). (C) (V)